Tag Archive for 'law enforcement'

Marijuana Wars with Maraschino Cherries and D.C.’s Mayor

Washington D.C.’s decriminalization of marijuana went into effect last week, drawing the wrath of prominent Congress members. Rep. Jason Chaffetz reportedly said D.C.’s Mayor could “go to prison for this.” Federal law enforcement’s war against marijuana has been continuous since Congress passed the Controlled Substances Act in 1970. However, that war has often shattered lives, as Arthur Mondella’s tragic story reveals.

Maraschino CherriesWhile the District of Columbia was preparing to decriminalize marijuana, local police and federal agents were conducting a raid on Maraschino Cherries Factory in Brooklyn. Law enforcement claimed to have a warrant to search the factory for violations of environmental laws, but the raid’s true purpose was to search for marijuana. The factory owner, Arthur Mondella, had inherited the business from his father and grandfather. Initially Mondella cooperated with the police. Authorities eventually discovered a secret room concealed by a fake wall. Mondella immediately went to the bathroom.

His sister, obviously concerned, followed. Mondella asked her to “take care of my kids” and then Mondella shot himself. After Mondella’s suicide, police entered the hidden basement. Law enforcement found a 2,500 square foot marijuana farm underneath the cherry factory.

Maraschino Cherries Kingpin vs. Washington, D.C.’s Mayor

Although I drew comparisons between D.C. and Mondella, there are enormous differences. In D.C., the voters had approved a measure decriminalizing marijuana. If D.C. were a state rather than a federal district, Congress would not be as hostile. Mondella, on the other hand, was a private actor growing marijuana in knowing violation of the law. Mondella wasn’t trying to change the law, which would be legal; he was violating the law for, possibly, his own profit.

News coverage of the cherry factory conflict with each other. Most stories quote an unknown police officer claiming Mondella wouldn’t have done any jail time. However, some stories claim the officer wouldn’t have done time for spilling cherry syrup in the water while other stories quote the officer saying Mondella wouldn’t have done jail time for marijuana.

Although Mondella wouldn’t have gone to jail for cherry syrup, the idea that Mondella wouldn’t have gone to jail over marijuana is laughable. Mondella was concealing what looked like a multi-million dollar farm on his property. Federal prosecutors would have indicted Mondella as a drug kingpin and there is no doubt that Mondella would have served significant time. If Congress is threatening to lock up the mayor of D.C. for enforcing an initiative to decriminalize marijuana, imagine what the Justice Department would do to a man caught running an entire drug operation in his factory.

States across the country might be decriminalizing marijuana, but there’s no doubt that some federal actors still want to win the war on marijuana.

Can the Government Create a Fake Facebook Page Using Your Identity?

In 2010, a New York woman named Sondra Arquiett learned that her identity had been stolen. Someone had created a false Facebook page with her name that included racy photos of her. The page was complete with “friends”, comments supposedly made by her, and private messages. Arquiett reported the page and soon found out that U.S. Drug Enforcement Administration Special Agent Timothy Sinnigen was responsible for stealing her identity.

fake facebook pageArquiett was arrested not long before the page was set up for involvement in a drug ring. The judge sentenced her to five years’ probation, which included six months of weekend incarceration and six months home detention. While awaiting trial, Sinnigen used Arquiett’s seized cell phone to set up the false online profile without her knowledge.

Arquiett sued Sinnigen in federal district court in Syracuse, New York for violation of privacy and placing her in danger. The government defended the agent by stating Arquiett “implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations”.

Eventually, without taking responsibility, the Justice Department settled on $134,000 to be rewarded to Arquiett.

Was This Legal?

According to Facebook’s “Community Standards”, “Claiming to be another person…violates Facebook’s terms”. A spokesman for Facebook says law enforcement is not exempt from the site’s policies. But, this is just a policy, not a law. Are there any laws that apply?

In 1984, New York State enacted the Personal Privacy Protection Law. This law prohibits an agency (like the DEA) from collecting personal information (such as Arquiett’s photos) unless it is “relevant and necessary” to an agent’s goal that must be accomplished by law. Also, when an agency requests personal information from an individual (which the DEA failed to do), the agency must disclose how and why the information is being used (also failed in this aspect).

Facebook has since taken down the fake profile of Arquiett. Even though the Justice Department refused any responsibility for violating privacy laws, at least Arquiett received a settlement and she has since had her probation terminated.

Even Fake Threats on Social Media Can Get You Arrested

Most people understand that social media posts can get you in trouble. Stories abound about how people have ruined friendships, lost jobs, and even gotten robbed from the information they post online. Here’s a reminder that writing threats on social media can also land you in jail.

social media threatRecently, a man was charged with threatening to kill Darren Wilson, the officer who shot and killed Michael Brown in Ferguson, Missouri. He posted multiple statuses to Facebook, one of which stated he wanted to “give back those bullets to that…[Darren Wilson]” and if he can’t find him then he’ll “return them to his wife and if not her then to his children”. The man’s name is Jaleel Tariq Abdul-Jabbaar, a 46 year old Washington resident. He has been posting threatening Facebook statuses since the decision to not indict Wilson on November 24th. This included messages of an intent to buy an illegal firearm.

Of course, open discussion and debate are welcome in America. It is a part of what makes our country a democracy. Our first amendment allows us the power of freedom of speech. However, there are limits. According to Acting U.S. Attorney Annette L. Hayes, when “violence or threats of violence that are intended to intimidate, and ultimately silence debate” occur, they are not tolerated and are considered crimes.

Abdul-Jabbaar is facing three counts of making interstate threats, and could face up to 15 years of jail time.

Another act of social media ignorance involves a 14 year old Dutch girl who posted what she thought was a silly prank onto Twitter. Her Twitter handle is @QueenDemetriax_, and on the account she goes by the name “Sarah”. On one clearly boring afternoon, she decided to tweet to American Airlines, for entertainment purposes. The tweet states “Hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye”. The Airlines didn’t take this so lightly, immediately replying with “Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.” This in turn caused “Sarah” to send out multiple tweets explaining her innocence and how she is “just a girl”.

The Rotterdam Police Department arrested “Sarah” and she almost faced charges for posting a false or alarming announcement. Sarah was released, but still remained a suspect. Tinet de Jonge, a spokeswoman for the police department, said it was up to the Airlines whether or not she will face charges.

The real lesson here, is to just be careful about what you post. No matter how old you are, or where you live, any type of threatening social media post will always be taken seriously by law enforcement authorities. There’s nothing funny about facing jail time for what seemed like a silly prank.

Militarized Police Forces Cause More Problems than They Solve

A few years ago, the Occupy movement was alive and kicking. It meant a lot of things to a lot of people. But one thing that it gave to nearly everyone was a glimpse into militarization of modern police forces. Stories of protesters being hospitalized after being shot with tear gas canisters and rubber bullets in Oakland may have initially conjured images of extreme violence by hordes of unruly citizens in the streets.

militarized police forcesQuite to the contrary, reports told of peaceful protesters being the target of these attacks. In any event, amounts of unruly protesters are almost irrelevant; law enforcement is not allowed to shower unsuspecting families in chemical weapons because of one house on the corner nearby is causing problems.

The recent demonstrations in Ferguson, Missouri, and the subsequent militarized call to action by law enforcement, has catapulted an important question into the headlines: why do police increasingly resemble soldiers?

Where Are These Weapons Coming From?

As our armed conflicts abroad are winding down, the federal government is finding itself with a surplus of military equipment. Under a program referred to as “war-fighter to crime-fighter,” over $4 billion dollars of wartime equipment has been re-purposed to local law enforcement. In addition to assault rifles, armored vehicles and personnel carriers are among the most common to be cruising the mean streets of Anytown, USA.

What’s the Big Deal?

Undoubtedly, there are those who may not see this as a problem. Some may even go as far as to imply if it weren’t for the unruly few alluded to earlier, police would not need to resort to such extreme measures. The problem with these positions is they miss the point entirely. Here are four of the biggest issues with police militarization.

1) Poor Police Tactics – First and foremost, bulking up law enforcement with instruments of destruction doesn’t neutralize what is most likely a constitutionally protected assembly and exercise of free speech. However, it does neutralize communication between the demonstrators and the police. Since the tragedies surrounding protests in 1960s, many police forces have made efforts to make communication and transparency with activists a priority.

Police know – or should know – that their first priority is to protect the community. This also includes protecting the Constitution. It is well settled that the best way to do so is to foster civility. Militarization only mounts tensions, and time and time again has all but guaranteed overreactions and incidents of violence.

2) Threatens Constitutional Principals  Similar to above, but much more ominous, is the likelihood that the First Amendment will not be respected. Scholars debate that the First Amendment, specifically the freedom of expression, was first priority to our founding fathers because it sits at the foundation of every other amendment. Meaning, quite simply, without it, the rest of the Constitution is remarkably toothless.

Sadly, where a police force is militarized, history has shown that any number of specific lawbreakers are not silenced exclusively, but rather tear gas, riot gear, and rubber bullets are used to just shut the entire event down. Otherwise lawful assemblies are declared, rightly or wrongly, unlawful, and chaos ensues.

As a result, citizens who were engaged in lawful political speech are violently and abruptly silenced. Frequently, journalists, who are not engaged in the demonstration at all, are arrested. The result is otherwise protected speech is crushed under the heel of a combat boot.

3) Excessive Force – A helpful illustration of how valuable our nation views the First Amendment is the $4.5 million settlement the city of Oakland reached with documentary photographer Scott Olson. The settlement is to compensate him for his injuries; both from the fractures to his skull as a result of being struck by a lead-filled bean bag bullet, as well as to the deprivation of his constitutional rights.

Olson is no stranger to the dangers of a militarized police force, and as an ex-marine and war veteran, to conflict as a whole. However, his incident is not an isolated one. The Oakland Police Department’s approach to the Occupy protests lead to several other lawsuits and federal oversight. The situation is not looking much better in Ferguson, where the Missouri Highway Patrol has largely replaced the police force, and the federal government has similarly issued staunched warnings over excessive force.

4) Lawsuits – As an overarching theme of all of the above issues are the slew of lawsuits that will inevitably follow. Far from frivolous, these suits are designed to make victims of over-policing whole again. At the risk of repetition, these lawsuits, while necessary to protect victims, ultimately weaken the local community. Money that could have gone to improving safety training for officers or upgrading more important equipment, like jail cells and squad cars – or even pay salaries – will be diverted to compensate victims.

What’s the Solution?

Often times, there is no clear answer to legal dilemmas. Fortunately, when it comes to a militarized police force, the answer seems plain and simple: stop. Just stop. Don’t do it.

Proponents may insist militarization helps taxpayers by reducing federal government waste, and how proper military training may actually be beneficial in the future and thus militarization just needs to be given a chance. Finally, some may argue that armored cars and assault weapons help keep officers safer.

However, the reality is that whatever benefit to tax payers simply cannot outweigh local communities suffering as excessive force lawsuits stack up, let alone at the peril of long held constitutional principals. Additionally, proper training clearly needs to be implemented, but not with respect to combat weapons in the streets of suburbia. In no scenario should an assault rifle mounted to a tri-pod atop of an armored vehicle – and pointed at protesters with their hands up – be tolerated. Moreover, in the rare occasion a hostile situation calls for more force, departments should all already have highly trained SWAT teams to efficiently diffuse the event.

Finally, with respect to safety, police are already armed with deadly weapons they carry during the course of their daily duty, as well as crowd control gear and tactics. Further adding to their deadliness does not necessarily make them safer. It only makes innocent citizens markedly less safe.

As a result, not only is the Constitution put at risk; life itself is as well.

Film the Police! – Is It Legal to Film and Photograph Law Enforcement?

When I moved to the San Francisco Bay Area four years ago, I was impressed by all the young people eager to champion social justice causes. Perhaps even more impressive was the number of law enforcement professionals who invariably appeared at demonstrations and protests.

I remember attending a demonstration for the sentencing of Johannes Mehserle, the BART officer who killed Oscar Grant. While walking with the demonstrators, I made good use of my camera. I photographed anyone in plain sight, including police officers. During the course of the event, someone asked me if it was legal to include the police in the pictures. As a law student and avid First Amendment advocate, my initial responses was “duh,” but nonetheless, I felt compelled to explain why.

Can I Film the Police?

film and photograph the policeAs a general matter, the answer is yes. However, it is not the resounding, absolute yes I’d prefer to give. Photography, or videography, is obviously not explicitly protected by the First Amendment. However, your ability to film the police has become a largely protected activity as “expressive conduct.” This means: so long as your film or photographs can communicate a message to a potential audience, your camera and its contents are protected.

Before you get carried away, there are a few things worth noting:

  1. Your ability to photograph as a form of expressive conduct only applies to places traditionally open to the public. If you burst into a home or a crime scene, wielding a camera and saying the First Amendment protects you, you are wrong (and probably a little crazy).
  2. Expressive conduct is subject to reasonable time, place, and manner restrictions. What this means is rather complex, but on a basic level, it means that police officers to ask you to back away or else they may corral you into a “First Amendment Zone.”
  3. Photographing or filming the police does not give you free range to violate the law. You must obey the traffic laws, property laws, and lawful commands of police officers.

Note that, at a protest, commands by the police to disperse likely do not require photographers or the press to cease engaging in newsgathering activities. Not only are they engaging in constitutionally protected behavior, they are likely not the actors engaging in the behavior the police have ordered to cease and disperse.

There is ample federal precedent to support the legality of photographing and filming police. While some federal circuits have punted on the issue, others have explicitly said filming a public officer in the course of their public duty is an essential right and important to preserving a free, educated democracy.

Can the Police Ask Me to Stop Filming or Hand over My Camera?

Yes. Police can ostensibly ask you whatever they feel like asking you. Whether or not you have to listen or respond, however, is another matter.

If you are lawfully in a public place, and not interfering with the officer’s work, and a police officer asks you to stop filming, you are under no obligation to do so. The officer may have a valid reason to ask you to step away, or to move back, and you will need to use your own judgment (and perhaps videotape the scene, including your feet and the officer’s distance from you, to give validation and perspective to your conduct) as to whether or not that is a lawful request and how you should respond. However, under no circumstances are you required to listen to an officer who is unlawfully commanding you to stop making photographs or videos. Assuming the police officer is professional, they will realize that filming and photographing is not a crime, and return their focus on the real issues they are addressing.

Unfortunately, some police are not professional. Some may even confiscate your camera. Keep in mind, if this occurs, you should never resist an officer. If you strike a bad chord with one, and that officer gets physical, comply. Hopefully, police officers know better than to seize a video or film camera. If they do not, and they do seize that camera, let them know that they cannot search your camera without a warrant. If they proceed to anyway, additionally remind them that absent any good-faith belief that your camera contains specific evidence of a crime, they are violating the Constitution and potentially exposing themselves to civil liability.

As a general rule, listening and being polite with the police goes a long way. But this does not mean you shouldn’t stand up for your rights. After all, it is a police officer’s job to protect and serve.

Any Questions?

If you do, consider talking to a local attorney on the wiretapping laws and treatment of the First Amendment and photography or videography in your state. This will help you to become educated and may also prompt a lawyer to take action against unscrupulous or unclear laws, if it is necessary.