‘Cheap Clicks’: How the Media ‘Stigmatizes’ Suspects

Recent decisions by news outlets to shield the names of those arrested for misdemeanors  raise provocative questions about the media’s longtime reliance on crime news, much of it sensational, writes Jack Shafer, senior media writer for Politico.

Critics both inside and outside the news industry would like to staunch the usual flow of crime reporting with some new practices, Shafer wrote in a recent column.  

“Their argument boils down to this: Too much crime reporting unnecessarily stigmatizes both suspects and the convicted.”

Associated Press recently announced that “AP will no longer name suspects in minor crime stories, which we sometimes cover and pick up from member news organizations as one-off briefs because they are ‘odd’ and of interest to our customers.”

“Usually, we don’t follow up with coverage about the outcome of the cases. We may not know if the charges were later dropped or reduced, as they often are, or if the suspect was later acquitted,” said the Associated Press.

What makes people’s lives especially difficult in this regard is Google.

AP wrote: “These minor stories, which only cover an arrest, have long lives on the internet. AP’s broad distribution network can make it difficult for the suspects named in such items to later gain employment or just move on in their lives.”

As Shafer put it, Google search has “frozen into electronic amber every reported misdemeanor or felony, condemning the suspects to an eternity of shame.”

Under the “right to be forgotten” rubric, Cleveland.com (and sister institution, the Cleveland Plain Dealer), The Boston Globe, the Bangor Daily News and other newspapers have altered the way crime news should be preserved and retrieved.

Cleveland.com announced a Right to be Forgotten policy, in which it removes names of people from dated, embarrassing stories about them.

“In the days before the Internet, newspapers carried stories about minor crimes or stupid antics, and the stories almost immediately faded from memory,” Cleveland.com wrote.

“People paid the court-required penalties for their crimes and moved on, and you could find evidence of the mistakes only by searching court dockets or combing through newspaper microfilm. Few people did that.”

However, Shafer also raises the question of protection of the public.

He writes, “Can we justify rewriting newspaper archives because old but accurate stories embarrass people?”

“Exercising a right to be forgotten obviously helps those who wish to shield their past from scrutiny. But it inflicts potential harms on job recruiters, loan officers, prospective business partners, dates and others who want an accurate gauge of someone’s long-term reputation.”

The movement to revise old stories wouldn’t be happening if newspapers hadn’t made their archives available to the Google search engine, which made mass searches possible, writes Shafer.

“Had newspapers withheld their archives from the Google crawler, people would have to search one newspaper at a time for names.”

Shafer underscores a point mentioned by the Associated Press: the failure of news media to follow up on arrests: was the person exonerated? This too often is shrugged off, leaving the arrest in Google for eternity.

“The right-to-be-forgotten proponents have done us a great service by underscoring how good journalists are at publishing news about arrests but how wretched they are recording innocence, exoneration or dropped charges,” Shafer writes.

But he suggests that solution to this journalistic shortcoming isn’t to blank the names of suspects from old stories or to hide them from Google.

“If the arrest of a suspect is newsworthy enough to be reported in a newspaper, the exoneration or the dropping of charges should be equally newsworthy.”

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June 28, 2021 at 10:46AM

Prisoners Sent Home Due to COVID Face Possible Return

Some 4,000 federal offenders could soon return to prison — not because they violated the terms of their home confinement, but because the U.S. appears to be moving past the worst of the pandemic, reports the New York Times. At the end of the Trump administration, the Justice Department issued a memo saying inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison. Some lawmakers and criminal justice advocates are urging President Joe Biden to revoke the rule and use his executive power to keep them on home confinement or commute their sentences entirely, arguing that the practice costs less and exemplifies a better form of justice. Andrew Bates, a spokesman for Mr. Biden, said in a statement that the president was “committed to reducing incarceration and helping people re-enter society,” but he referred questions about the future of those in home confinement to the Justice Department.

The United States spent an average of $37,500 to keep federal inmates imprisoned during the 2018 fiscal year. Home confinement costs around $13,000 a year, with expenses including monitoring equipment and paying private contractors to handle supervision, according to a 2017 Government Accountability Office report. The vast majority of the 24,000 federal prisoners who were released to home confinement because of the coronavirus crisis followed the rules. Inmates are typically allowed to serve the final six months, or 10 percent, of their sentence on home confinement. Larry Cosme, the national president of the Federal Law Enforcement Officers Association, which represents probation officials, cautioned against changing those requirements without a proper review and said the releases put a strain on those responsible for monitoring the inmates.

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June 28, 2021 at 11:30AM

Supreme Court Says You Can’t Sue the Corporation that Wrongly Marked You A Terrorist

In a 5-4 decision, the Supreme Court late last week barred the courthouse door to thousands of people who were wrongly marked as “potential terrorists” by credit giant TransUnion. The Court’s analysis of their “standing” —whether they were sufficiently injured to file a lawsuit—reflects a naïve view of the increasingly powerful role that personal data, and the private corporations that harvest and monetize it, play in everyday life. It also threatens Congressional efforts to protect our privacy and other intangible rights from predation by Facebook, Google and other tech giants.

Earlier this year, we filed an amicus brief, with our co-counsel at Hausfeld LLP, asking the Court to let all of the victims of corporate data abuses have their day in court.

What Did the Court Do?

TransUnion wrongly and negligently labelled approximately 8,000 people as potential terrorists in its databases. It also made that dangerous information available to businesses across the nation for purposes of making credit, employment, and other decisions. TransUnion then failed to provide the required statutory notice of the mistake. The Supreme Court held this was not a sufficiently “concrete” injury to allow these people to sue TransUnion in federal court for violating their privacy rights under the Fair Credit Reporting Act. Instead, the Court granted standing only to the approximately 1,800 of these people whose information was actually transmitted to third parties.

The majority opinion, written by Justice Kavanaugh, fails to grapple with how consumer data is collected, analyzed, and used in modern society. It likened the gross negligence resulting in a database marking these people as terrorists to “a letter in a drawer that is never sent.” But the ongoing technological revolution is not at all like a single letter. It involves large and often interconnected set of corporate databases that collect and hold a huge amount of our personal information—both by us and about us. Those information stores are then used to create inferences and analysis that carry tremendous and often new risks for us that can be difficult to even understand, much less trace. For example, consumers who are denied a mortgage, a job, or another life-altering opportunity based upon bad records in a database or inferences based upon those records will often be unable to track the harm back to the wrongdoing data broker. In fact, figuring out how decisions were made, much less finding the wrongdoer, has become increasingly difficult as an opaque archipelago of databases are linked and used to build and deploy machine learning systems that judge us and limit our opportunities.

This decision is especially disappointing after the Court’s recent decisions, such as Riley and Carpenter, that demonstrated a deep understanding that new technology requires new approaches to privacy law.

This decision is especially disappointing after the Court’s recent decisions, such as Riley and Carpenter, that demonstrated a deep understanding that new technology requires new approaches to privacy law. The Court concluded in these cases that when police collect and use more and more of our data, that fundamentally changed the inquiry about our Fourth Amendment right to privacy and the Court could not rigidly follow pre-digital cases. The same should be true when new technologies are used by private entities in ways that threaten our privacy.

The majority’s dismissal of Congressional decision-making is also extremely troubling. In 1970, at the dawn of the database era, Congress decided that consumers should have a cause of action based upon a credit reporting agency failing to take reasonable steps to ensure that the data they have is correct. Here, TransUnion broke this rule in an especially reckless way: it marked people as potential terrorists simply because they shared the same name as people on a terrorist watch list without checking middle names, birthdays, addresses, or other information that TransUnion itself undoubtedly already had. The potential harms this could cause are particularly obvious and frightening. Yet the Court decided that, despite Congress’ clear determination to grant us the right to a remedy, the Court could still bar the courthouse doors.

Justice Thomas wrote the principal dissent, joined by Justices Breyer, Sotomayor, and Kagan. As Justice Kagan explained in an additional dissent, the ruling “transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.” Indeed, Congress specifically recognized new harms and provided a new cause of action to enforce them, yet the Court nullified these democratically-enacted rights and remedies based on its crabbed view that the harms are not sufficiently “concrete.”

What Comes Next?

This could pose problems for a future Congress that wanted to get serious about recognizing and empowering us to seek accountability for the unique and new harms caused by modern data misuse practices, potentially including harms arising from decision-making based upon machine learning and artificial intelligence. Congress will need to make a record of the grievous injuries caused by out-of-control data processing by corporations who care more for their profits than our privacy and expressly tie whatever consumer protections it creates to those harms and be crystal clear about how those harms justify a private right of action.

The Court’s opinion does provide some paths forward, however. Most importantly, the Court expressly confirmed that intangible harms can be sufficiently concrete to bring a lawsuit. Doing so, the Court rejected the cynical invitation from Facebook, Google, and tech industry trade groups to deny standing for all but those who suffered a physical or economic injury. Nonetheless, we anticipate that companies will try to use this new decision to block further privacy litigation. We will work to make sure that future courts don’t overread this case.

The court also recognized that the risk of future harm could still be a basis for injunctive relief—so while you cannot seek damages, you don’t have to wait until you are denied credit or a job or a home before seeking protection from a court from known bad data practices. Finally, as the dissent observed, the majority’s standing analysis only applies in federal court; state courts applying state laws can go much further in recognizing harms and adjudicating private causes of action because the federal “standing” doctrine does not apply. The good work being done to protect privacy in states across the country is now all-the-more important.

But, overall, this is a bad day for privacy. We have been cheered by the Supreme Court’s increasing recognition, when ruling on law enforcement activity, of the perils of modern data collection practices and the vast difference between current and previous technologies. Yet now the Court has failed to recognize that Congress must have the power to proactively protect us from the risks created when private companies use modern databases to vacuum up our personal information, and use data-based decision-making to limit our access to life’s necessities. This decision is a big step backwards for empowering us to require accountability from today’s personal data-hungry tech giants. Let’s hope that it is merely an anomaly. We need a Supreme Court that understands and takes seriously the technology-fueled issues facing us in the digital age.    

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June 28, 2021 at 01:50PM

“Cops Say Encryption Hinders Investigations. These Documents Say Otherwise.”

Despite much whining on the part of law enforcement about the alleged perils to public order posed by encryption, it’s no secret that cops can often bypass measures intended to protect privacy. Now, documents obtained by Vice‘s Motherboard describe just how police agencies use one tool to extract data from Apple devices. It’s more evidence that officials aren’t stymied by encryption half as often as they claim, but just want to paw through our information without effort or expense.

“‘How to unlock and EXTRACT DATA from Apple Mobile Devices with GrayKey,’ the instructions, seemingly written by the San Diego Police Department, read,” Vice‘s Joseph Cox reveals of the documentation obtained with a public records request. “The instructions describe the various conditions it claims allow a GrayKey connection: the device being turned off (known as Before First Unlock, or BFU); the phone is turned on (After First Unlock, or AFU); the device having a damaged display, and when the phone has low battery,” he adds.


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June 28, 2021 at 08:36PM

Clarence Thomas Suggests Marijuana Laws Are Outdated

Supreme Court Justice Clarence Thomas on Monday said that federal laws against the sale and cultivation of marijuana are inconsistent, making a national prohibition unnecessary, reports CNBC. The court’s decision not to hear a new case related to tax deductions claimed by a Colorado medical marijuana dispensary prompted Thomas to issue a statement that more broadly addressed federal marijuana laws. Thomas stated that a 2005 ruling in Gonzales v. Raich in particular, which determined that the federal government could enforce the prohibition against marijuana possession, may be outdated.

Thomas referred to several policies that conflict with the 2005 ruling. Among them are memorandums issued by the Department of Justice in 2009 and 2013 that indicated the government would not intrude on state marijuana legalization schemes or prosecute individuals for marijuana activity if it complies with state law. He added that since 2015, Congress has repeatedly prohibited the Justice Department from using federal money to interfere in the implementation of state medical marijuana laws. With 36 states permitting the use of medical marijuana and 18 allowing recreational use, Thomas asserted that marijuana businesses do not experience “equal treatment” under the law.

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June 29, 2021 at 10:14AM

Did the FBI Loot a Cave for Hidden Civil War Gold?

In the latest twist to a 158-year-old mystery, a father-and-son team of treasure hunters claims the FBI is holding a cache of gold stored in a Pennsylvania cave. The FBI denies it, according to The Washington Post. The story began in 1863, when a Union officer identified as “Lt. Castleton” disappeared while leading a unit transporting gold to the U.S. Mint in Philadelphia. In the intervening years, father-and-son treasure hunters Dennis and Kem Parada told the story to FBI Special Agent Jacob Archer, inaugurating a search for the missing gold. The FBI closed the case after saying investigators didn’t find anything in the cave, but the Parada family, who in 2018 led FBI agents to the cave, and former Wall Street Journal reporter Warren Getler say the FBI is lying.  Tests inside the cave purportedly identified a large, metal substance beneath the ground, which they later determined weighed up to nine tons and had the density of gold.

Archer was granted a federal warrant to seize the alleged gold, fearing that if he asked for the state government’s permission they would claim the gold belonged to Pennsylvania. The Parada family made an oral agreement with the bureau to observe the March 2018 dig, but weren’t allowed to leave their cars. Getler believes the FBI found the gold and decided to keep it as a matter of national security. The FBI says nothing was found at the site.

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June 29, 2021 at 10:51AM

Police Train to Intervene in Fellow Officer Misconduct

Since the killing of George Floyd last May, more police departments have begun training police officers to intervene when their fellow officers use excessive force or engage in other misconduct, reports the Wall Street Journal. Many are using training called Active Bystandership for Law Enforcement, or ABLE, that was designed by policing researchers at Georgetown University Law School. While few departments seemed interested when the program launched in New Orleans in 2016, the number that have signed up since Mr. Floyd’s murder now totals 138, including in New York City, Philadelphia, and Boston. The training encourages officers to intervene well before a potential incident if a fellow officer is angry or depressed, all the way up to stopping someone from doing something that could cost them their job. 

ABLE offers train-the-trainer sessions to officers who then go back to their own departments. Agencies that want to sign up must train everyone from their chief to their newest recruits. Departments that sign up for ABLE are required to have a strong anti-retaliation policy on the books. Departments must also consider acceptance of an intervention by a colleague as a mitigating factor when disciplining officers. Because adoption of the training is so new, there aren’t studies yet on its effectiveness. A variety of antibias and de-escalation trainings have proven ineffective in the past, often because they often weren’t backed up by any changes in internal policy or because agencies dropped them once political pressure on police died down.

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June 28, 2021 at 11:22AM

Lawyer suspended for ‘incendiary’ Facebook posts must complete diversity education

A South Carolina lawyer has been suspended for six months for Facebook posts about George Floyd and women’s tattoos that are “expressly incendiary,” according to the South Carolina Supreme Court.

In a June 18 opinion, the South Carolina Supreme Court ordered the suspension of David Paul Traywick. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by the assessments.

Traywick had admitted misconduct and consented to any sanction that is no longer than a six-month suspension. He did not raise a First Amendment challenge to discipline.

The Associated Press and the State (via the New York Post) had coverage.

The South Carolina Office of Disciplinary Counsel had received complaints from 46 people about Traywick’s posts that were visible to the public. His Facebook profile identified himself as a lawyer and referenced his law firm.

The South Carolina Supreme Court said 12 posts by Traywick were “troubling,” but it was focusing its analysis on two of them.

Traywick posted about Floyd on June 3, 2020, a little more than a week after Floyd was killed by a Minneapolis police officer who kneeled on his neck. Traywick wrote this about Floyd: “Here’s how much that s- – -stain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. F- – – you. Unfriend me.”

Traywick posted about tattoos April 5, 2020. First, he posted his theory about tattoos and challenged his readers to “Prove me wrong. Pro tip: you can’t.”

A reader suggested that Traywick instead prove that he was right. Traywick responded: “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring motherf- – -ers. And they are everywhere. F- – em. Especially these females, Jesus Christ!”

The South Carolina Supreme Court said the two comments warrant the suspension.

“These comments are not expressive; they are expressly incendiary. Both are statements by a lawyer on his social media account identifying him as such and listing the name of his law firm. The statements were intended to incite, and had the effect of inciting, gender and race-based conflict,” the state supreme court said.

“We are particularly concerned with the statement regarding Mr. Floyd. We find this statement was intended to incite intensified racial conflict not only in [Traywick’s] Facebook community but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline.”

Traywick did not immediately respond to an ABA Journal email seeking comment.

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June 29, 2021 at 12:34PM

“A whiff of pot alone no longer airtight probable cause for police to search cars in several states”

In other states where marijuana is legal, the rules regarding searches are being hammered out in the courts. In Maryland, for instance, where 10 grams or less of marijuana has been decriminalized, an appellate court concluded in April that the odor of marijuana by itself does not provide reasonable suspicion of criminal activity, and thus the search of a pedestrian on this basis was unreasonable under the Fourth Amendment.

The Colorado Supreme Court threw out a drug conviction in 2019 because police had no justification for having a dog sniff the defendant’s truck, given that they had no reasonable suspicion a crime was being committed now that marijuana is legal there.

Yet last year, the high court in Michigan said evidence of illegal guns and drugs should not be suppressed, saying the odor of marijuana was sufficient to justify a warrantless search, and that the defendant initially denying having any made the officer believe he had more than the 2.5 ounces allowed by law.

And in March in Florida, where only medical marijuana has been decriminalized, an appellate court ruled the smell of marijuana was enough to justify a search, particularly if the vehicle was being driven recklessly or erratically.

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June 29, 2021 at 03:51PM

Colorado Cop Charged With Felony Assault After Fellow Officers Reported Him For Using Chokehold on Suspect

A Colorado police officer is facing felony assault charges after two of his fellow officers reported him for allegedly using an illegal chokehold on a suspect during an arrest earlier this month, several local news outlets reported.

Officer Ken Amick, who has been with the Greeley Police Department since 2006, was placed on unpaid leave after Weld County prosecutors filed second degree assault charges — a Class 4 felony — against him in connection with his June 7 arrest of suspect Matthew Wilson.

The Weld County District Attorney’s Office issued a terse three-sentence statement which confirmed the charges were filed.

According to the reports, Amick and several other officers responded to an alarm that had been set off at City Center North. Upon arriving on the scene, City Center employee informed the officers that a man had been threatening to set the building on fire. The officers located the suspect in the building lobby and identified him as Wilson.

Amick then learned that there was already an outstanding warrant for Wilson’s arrest. He proceeded to take the suspect into custody in the building lobby.

As Amick was walking Wilson out of the building, Wilson complained that the handcuffs were too tight around his wrists and became increasingly “agitated,” police said.

“Officer Amick suddenly placed (the man) into a chokehold,” the department said in a news release. “After several seconds, (the man) showed ill effects from this hold while being placed on the ground. A second officer attempted to intervene during this initial encounter.”

The other officers checked on Wilson’s condition and helped him back to his feet. While still handcuffed, Wilson then grabbed Amick’s hand. Amick then used his knee to strike Wilson in the leg several times as the suspect complained about being subjected to excessive force, the department said.

Matthew Wilson. (Image via Weld County Sheriff’s Office records.)

Wilson and two other officers who were on the scene all reported to police supervisors that Amick used excessive force in Wilson’s arrest. Amick was immediately removed from patrol duty pending an internal investigation. That investigation concluded that there was probable cause for the district attorney to bring charges against Amick, who has since been placed on unpaid leave from the department.

Colorado state lawmakers passed a law in June 2020 outlawing the use of chokeholds by law enforcement officers. That sweeping police reform law, SB20-217, was passed in the wake of George Floyd’s death at the hands of police officers in Minnesota; it requires Colorado officers to affirmatively intervene when witnessing a colleague using excessive force.  The bill reads, in relevant part:

(2.5) (a) A peace officer is prohibited from using a chokehold upon another person.

(b) (I) For the purposes of this subsection (2.5), “chokehold” means a method by which a person applies sufficient pressure to a person to make breathing difficult or impossible and includes but is not limited to any pressure to the neck, throat, or windpipe that may prevent or hinder breathing or reduce intake of air.

(II) “Chokehold” also means applying pressure to a person’s neck on either side of the windpipe, but not to the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.

Under Colorado law, a Class 4 felony committed on or after July 1, 2018 is generally punishable by between two and six years behind bars and a mandatory period of parole of three years.

The Greeley Police Department did not immediately respond to an inquiry from Law&Crime for additional information on the incident.

According to the district attorney’s office, Amick will be in court on Aug. 23rd.  It is unclear if he has an attorney in this matter.

Aaron Keller contributed legal research to this report.

[image of Amick via GPD Facebook Page]

The post Colorado Cop Charged With Felony Assault After Fellow Officers Reported Him For Using Chokehold on Suspect first appeared on Law & Crime.

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June 29, 2021 at 01:56PM