Tag Archive for 'law enforcement'

Feds to Sheriff Joe: Maricopa County is Not Your Personal Fiefdom

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I’m not a huge fan of Maricopa County Sheriff Joe Arpaio. I’ve written about him before. While I understand the appeal of his “get tough” approach to fighting crime, I think that his methods run roughshod over the Bill of Rights. And, to be frank, he strikes me as having a serious lust for power. It’s funny how the people who want power the most are usually the ones who shouldn’t have it.

Lately, the federal government has been keeping a close eye on the Maricopa County sheriff’s office, investigating it for violations of federal civil rights law. It now looks like this conflict is finally coming to a head. The U.S. Justice Department has, for the first time since the investigation began, openly alleged that the Maricopa County Sheriff’s office routinely violates the U.S. constitution, as well as federal civil rights laws.

They have given the sheriff’s department an ultimatum: enter a legally-binding (and court-enforceable) agreement with the Justice Department to cease all unlawful activities, or face a civil lawsuit seeking to compel the department to comply with federal laws.

The allegations made by the federal government include a culture of racial profiling, discrimination, and routine violations of suspects’ rights to due process and privacy.

While none of these allegations have been proven, they are troubling nonetheless. In response, the Department of Homeland Security has suspended the authority of the Maricopa County sheriff’s department to investigate the immigration status of suspects it arrests (immigration is a federal matter, but the federal government delegates some of its enforcement power to state and local authorities, and has the right to revoke that power, as well).

Also, the sheriff’s single-minded obsession with illegal immigration has consumed a huge portion of the office’s resources. As a result, some 400 alleged sex crimes in Maricopa County have gone without proper investigation.

Of course, Joe Arpaio claims that the allegations are purely political. But it should be noted that this federal investigation began back in 2008, when George W. Bush was president. However, most of the focus has been on the Obama administration’s role, partly because the investigation was not disclosed to the public until after Obama took office.

Obviously, I hope that the Maricopa County Sheriff’s office cooperates with the Justice Department in this matter. Many other large law-enforcement agencies, including those in Los Angeles and New Orleans, have cooperated with the federal government in instituting civil rights reforms in the past, without the need for the courts to intervene.

But if they don’t cooperate, I hope the Justice Department aggressively pursues this case. Since 9/11 (and before then, to a lesser extent), some law enforcement agencies seem to be under the impression that we have to choose between effective law enforcement and civil liberties. This is simply untrue. And the Justice Department seems to finally be recognizing this fact. After all, if people can’t feel secure in their own homes from the actions of government agents who are supposed to be protecting them, how can we plausibly claim that we’re being kept safe?

I’m sure there are some people in Maricopa County who genuinely agree with Sheriff Joe’s goals and methods, and they will likely be upset with what they see as meddling by the federal government in a state’s internal affairs. Like it or not, however, Maricopa County is still part of the United States, and the U.S. has this thing called the constitution, which limits what states can do.

Plenty of American cities have managed to protect basic civil liberties while still maintaining a reasonable level of public safety. Hopefully, Maricopa County can do the same.

Of course, in the United States, most sheriffs are elected officials. If the voting public becomes fed up with the tactics of a particular sheriff, they can vote him or her out of office. Joe Arpaio has been re-elected many times, so it would seem, on the surface, that the people of Maricopa County approve of Sheriff Apraio’s objectives and methods. However, even if he has popular support of his constituents, the constitutional rights of individuals are not subject to majority vote.

Certain principles, like due process, the right to privacy, free speech, and the right to equal treatment under the law, regardless of race or national origin, are inviolable under the Constitution. They must be upheld, no matter how inconvenient or unpopular it is to do so. Hopefully, if these allegations are true, the appropriate action is taken to ensure that the Maricopa County Sheriff’s department commits itself to upholding the relatively modest standards set by the Constitution, and is able to move on from this unfortunate situation.

“Occupy” Protesters Getting a Crash Course in the First Amendment

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Whether you agree or disagree with the “Occupy Wall Street” protests that have been taking place around the U.S. for the last month or so, it’s hard to deny that they’ve become a bona fide political movement.

With any large protest movement (especially one that’s spontaneous and mostly leaderless), friction with law enforcement is inevitable. There have been a few high-profile reports of fairly severe clashes between police and protesters in a few places, but with protests occurring in dozens of large American cities, the general story seems to be that the protests have been largely peaceful, and the response of the police has been appropriately restrained, which is a credit to both groups.

And, as usual, the First Amendment is coming into play when the protesters do rub law enforcement the wrong way. In one of the First Amendment cases to arise out of the “Occupy” movement, the ACLU is representing (also reported here) members of Occupy Trenton, New Jersey in a case that raises some pretty interesting issues about free speech and freedom of assembly.

Essentially, the state is telling the protesters that they need to get rid of unattended signs, and stop using electric generators, arguing that the generators are a safety hazard, and the signs will simply turn into litter. On the other hand, the protesters are arguing that these demands are not based on any existing law, and that the authorities appear to be making up the rules as they go along.

From a First Amendment standpoint, this is definitely suspect. While the Supreme Court has repeatedly held that reasonable restrictions on the time, place, and manner of public protests are permissible under the First Amendment, these restrictions have to be laid out in written rules, and only applicable after the laws are promulgated. And, of course, they have to apply equally to ALL protests, regardless of the subject matter or content of individual protests.

However, if the authorities are allowed to make up the rules as they go along, abuse of that power is almost guaranteed, effectively giving the police a license to censor speech that they don’t like, by inventing new rules to regulate protests on the spot. One of the core components of First Amendment law is that any restriction on speech must be unambiguous and narrowly-tailored to promote a legitimate public interest.

In this case, if there were already rules in place saying that protesters couldn’t litter and, for safety reasons, couldn’t use electric generators, these restrictions would probably pass constitutional muster, since they don’t tell protesters what they can and cannot say.

However, if it’s true that these rules did not exist in New Jersey, and the authorities are simply promulgating them to deal with a particular situation, then their actions are constitutionally-suspect.

I don’t know how this case will turn out, but I hope it brings attention to the fact that, no matter how annoyed or inconvenienced they may be, the authorities cannot make up new rules on the fly to regulate expressive conduct. It may be easier than drafting thoughtful, clear, and narrowly-tailored regulations on demonstrations that respect the right to free speech while protecting public peace and safety, but if the state wants to regulate demonstrations (and, as I’ve said, some regulations are perfectly reasonable), that’s what they’re going to have to do.

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Airport Security Update: You Can Record the TSA

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A jury has just acquitted (also reported here) a man who was accused of crimes that boiled down to “annoying the TSA.”

More specifically, he refused to show his identification to a TSA (Transportation Security Administration) agent, and videotaped the entire incident. He was charged with crimes such as disobeying a lawful order, trespassing, and disorderly conduct, and a jury acquitted him of all charges. The defense didn’t even have to call any witnesses – simply betting that the prosecution would be unable to adequately prove their case. A very complete deconstruction of the whole trial is available here.

I recognize the need for airport security, and I’m all for reasonable measures to ensure that people aren’t able to take weapons onto airplanes. However, it seems pretty obvious that many of the measures taken by airport security amount to little more than theater. And when this theater involves having to choose between letting someone see you naked or feel you up (without even having to buy you dinner), this security theater goes from wasteful and irritating to downright frightening.

On top of that, there’s an increasing movement in the U.S. to criminalize the recording law enforcement officers, even if they’re on duty and in public, where they have no reasonable expectation of privacy. While the police sometimes raise arguments about how allowing bystanders to film them will have a “chilling” effect on them doing their jobs, let’s look at the implications of that argument: “If I, as a public servant, believe that I am likely to be held accountable to my public for my actions, I might think twice before acting.” It boils down to “I might be seen doing things that I’m no supposed to be doing, and therefore I’ll be afraid to do them!”

In a free society, those aren’t exactly arguments we should be entertaining. After all, we WANT law enforcement to be held accountable for their actions.

So, it should be obvious by now that I think this jury did the right thing, and I hope, in the future, juries exercise their right to nullify criminal charges in cases similar to this one. Remember, by the very structure of the jury system, juries have the inherent power to acquit criminal defendants if they believe the law they’re being charged under is unjust, even if the evidence supports the prosecutor’s allegations.

This has been seen in criminal cases involving possession of small amounts of drugs: in areas where public opinion tends against draconian drug laws, acquittals for charges of drug possession are sometimes higher than for other crimes.

Others on this blog have noted that the TSA’s newest practices (full body scans and/or invasive patdowns) raise some serious 4th Amendment issues. I agree, but I think this case cuts deeper than even the Constitution. It’s about us, as a society, drawing a line in the sand that we refuse to cross in the name of security. Ultimately, the decision of how much privacy and freedom we have to give up in the name of security rests with society, not courts or legislatures. We’ll have to think long and hard about just how much freedom, privacy, and dignity we’re willing to give up, just for the appearance of safety.

And if society does eventually decide to draw such a line, it’s just as likely to start in the jury box as the voting booth. I’ve discussed the concept of jury nullification before, and how it is one of the most potent tools that the public has when it comes to rejecting laws that they don’t like. Sure, we can vote in politicians who ostensibly oppose an unpopular law, but that’s no guarantee that it will actually be repealed.

With jury nullification, however, a law or policy nobody likes can be effectively stopped in its tracks. After all, if nobody is ever convicted under a particular law, prosecutors may stop wasting their time charging people under it.

I’m not saying that every action of defiance against the TSA is a good thing. Quite the opposite, in fact – as I said, we need airport security. Obviously, nobody wants to create a situation where it’s easy to bring weapons onto airplanes.

Nor am I some anti-government, sovereign citizen nutcase. I fully recognize that some government intervention is essential to keep society running smoothly. The fact that I believe such intervention would be best kept to a minimum is not, I hope, and extreme position. I simply think that, when the government claims it needs to intervene in some sector of economic or private life, we should seriously consider whether the benefits are worth the intervention.

If it turns out that these body scans become an essential weapon in our transportation safety arsenal (and maybe that’s what the Transportation Security Administration should change their name to. It sounds cooler, and they wouldn’t have to change their logo.), so be it. If it turns out to be a needlessly-intrusive waste of time and money, it should be treated accordingly, and scrapped.

In the age of international terrorism, it seems that we’ve developed a blind spot to costs vs. benefits in the security context. Anything that looks like it might conceivably make a terrorist attack slightly more difficult is a good idea, regardless of its costs. That would be fine, if resources were infinite. But they’re not. Time, money, and effort spent on ineffective measures could have been spent on something with more long-term effectiveness, even if they might not provide the same “if I’m all the way under the covers the monsters can’t get me” reassurance that some current airport security measures provide.

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Monitoring Big Brother: Is It Okay To Record The Police?

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Like clockwork, it seems like every month another story comes out about law enforcement abusing their powers or making mistakes in general.  They are almost a permanent fixture for most local news networks.  And unlike the constant stream of love directed toward firefighters, people in general are more wary of the boys in blue.  So much so that entire websites have sprung up dedicated to watching the cops tasked with watching over the public.  One blog recently caught my attention because the blogger running it is currently offering $100 to the best police video submitted to the site.  The rules for submission are simple, just film a cop conducting their duties and the best one wins.  The money offered is paltry, but the blog post highlights an interesting dilemma, one that is especially ripe in confusion and uncertainty in our internet age: Is it legal to film police?

The short answer is yes, but with exceptions which we’ll get into later.  What’s important to note first is that this question of legality is poignant not just because it delves into the legal aspects of our constitutional rights, but because it really is a question addressing the means in which we as American citizens may employ to ensure our own safety.  As noted earlier, websites about police preventing people from recording police activity are all over the internet, and issues of police brutality and violence seem like an unfortunate constant.  Furthermore, with the proliferation of personal recording devices in the form of cell phones, laptops, iPods, and security cameras, it’s hard to go anywhere in America these days without having your image caught in one form or another.

But getting back to the initial question posed in this post though, it’s generally legal to record police or in fact anyone at all with or without their consent.  However, please, please take note of the fact that “generally” doesn’t mean “always” because there are limits to this rule.

Laws regarding recording, whether by audio, video, photography, or a by combination of these forms can vary from state to state, and even among the federal districts, too.  But typically, if you want to record a police officer, you can do it as long as you’re conducting the recording in a public place.  This rule applies to recording non-law enforcement, as well, (hence the popularity and continued existence of TMZ).  This means in most states, if a cop pulls you over in a public street for speeding, you’d be in your right to record your transaction with the officer.  But say for instance, if police are investigating a murder scene in someone’s private house, a private citizen wouldn’t be able to waltz in and start recording the event unless they were authorized to do so (such as in the case of press photographers).

I mentioned earlier that usually consent wasn’t needed.  This is generally true as long as the recording is done in public; but in some states, such as Maryland, laws can be wildly different.  A Baltimore motorcyclist learned that the hard way when he was slapped with a felony charge from the Baltimore district attorney’s office for illegally recording a police officer without their knowledge.  Even though the man was pulled over in a public street, under Maryland law, law enforcement officers must still give their consent prior to being recorded.  Stranger still, some states simply require that the person recording must either announce that they’re recording or record in such a way that it’s obvious to the person or officer that they are being recorded.

So what should you do if you want to record a cop?  Well, before you do it or end up in a situation where you feel inclined to, check your state’s local laws on police surveillance.  And if you’re still nervous about it, you can always just ask for permission from the officer or person you’re planning to record prior to recording them.  This can be done directly or by simply announcing that you’re in a possession of a live recording device.  This is a good tip to consider, especially if you’re planning to try to win that $100.

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