The Fourth Amendment guarantees that every person shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This means government agents cannot enter your home or rifle through your stuff without a warrant, signed by a judge and based on probable cause. That right extends to the digital sphere: The Supreme Court ruled in 2018's Carpenter v. United States that the government must have a warrant to track people's movements through their cellphone data.

But governments are increasingly circumventing these protections by using taxpayer dollars to pay private companies to spy on citizens. Government agencies have found many creative and enterprising ways to skirt the Fourth Amendment.

Cellphones generate reams of information about us even when they're just in our pockets, including revealing our geographical locations—information that is then sold by third-party brokers. In 2017 and 2018, the IRS Criminal Investigation unit (IRS CI) purchased access to a commercial database containing geolocation data from millions of Americans' cellphones. A spokesman said IRS CI only used the data for "significant money-laundering, cyber, drug and organized-crime cases" and 
terminated the contract when it failed to yield any useful leads.

During the same time period, U.S. Immigration and Customs Enforcement (ICE) paid more than $1 million for access to cellphone geolocation databases in an attempt to detect undocumented immigrants entering the country. The Wall Street Journal reported that ICE had used this information to identify and arrest migrants.

In the midst of the COVID-19 pandemic, the Centers for Disease Control and Prevention spent $420,000 on location data in order to track "compliance" with "movement restrictions," such as curfews, as well as to "track patterns of those visiting K-12 schools."

The Defense Intelligence Agency (DIA) admitted in a January 2021 memo that it purchases "commercially available geolocation metadata aggregated from smartphones" and that it had searched the database for Americans' movement histories "five times in the past two-and-a-half years." The memo further stipulated that "DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially
available data for intelligence purposes."

Even in the physical world, governments have contracted out their spying. The Drug Enforcement Administration (DEA) spent millions of dollars paying employees at private companies and government agencies for personal information that would otherwise require a warrant. This included paying an administrator at a private parcel delivery service to search people's packages and send them to the DEA, and paying an Amtrak official for travel reservation information. In the latter case, the DEA already had an agreement in place under which Amtrak Police would provide that information for free, but the agency instead spent $850,000 over two decades paying somebody off.

It seems the only thing more enterprising than a government agent with a warrant is a government agent without one.

The post The Feds Are Skirting the Fourth Amendment by Buying Data appeared first on Reason.com.

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

The post Police Cannot Seize Property Indefinitely After an Arrest, Federal Court Rules appeared first on Reason.com.

Moral panic about sex work leads to law enforcement practices that reach far beyond anyone engaged in or with erotic labor. The latest example comes from San Diego County, California, where cops are putting up a creepy surveillance tower under the auspice of stopping sex sellers and sex buyers from meeting.

The prostitution surveillance tower, stationed along National City's Roosevelt Avenue, will record video of anyone who happens to be in the area.

Normalizing Warrantless Surveillance

A supporter of the surveillance tower told a local CBS affiliate that it will help reduce prostitution by recording the license plate numbers of people who enter the area to pick up sex workers.

Schemes to catch people who want to pay another consenting adult for sex are a waste of money and manpower and a violation of privacy, free association, and bodily autonomy, of course. But even if you think that punishing prostitution customers (or sex workers themselves) is a swell idea, it's hard to see how the surveillance tower makes any sense.

You can't charge someone for simply picking another person up off the street, even if police think the person on the street looks like a sex worker. Even if money visibly exchanged hands—well, it's not a crime to give someone cash. Unless the entire sexual exchange happens right in front of the cameras, it's hard to imagine on what basis cops could possibly make any charges stick.

Besides, the tower is very visible and local media have been publicizing it. Smart sex workers and their customers will simply move to another, less visible area. If the surveillance tower has any impact at all, it will be to drive prostitution from one part of the city to another. That's it.

It seems clear that the idea here isn't actually cracking down on prostitution. It's just a way for authorities to look like they're doing something about sex trafficking while further normalizing the idea of conducting broad, warrantless surveillance of everyone.

So Many Sex-Trafficking Myths

Local reporting on the new surveillance tower has been heavy on human trafficking myths and dubious statistics. Citing a group called The Ugly Truth, Fox 5 San Diego suggested that "there are over 3,000 to 8,000 sex trafficking victims in the county each year."

And on what data does The Ugly Truth base this? Its website doesn't say. But considering that that's vastly more victims than we see in trafficking arrests across the whole country in a year, and considering the fact that "sex trafficking stings" in California and elsewhere routinely turn up few or no victims, I'm going to guess this data is bogus, if it exists at all.

The Ugly Truth's website also states that there are "approximately 18,000 victims in the U.S." If we take that at face value (and again, it's dubious), that would mean that around 17 to 44 percent of all U.S. trafficking victims are in San Diego County. Why, it's almost as if these numbers are completely made up…

Such sketchy figures are par for the course when it comes to activism and reporting about sex trafficking.

Fox 5 also claims that the "the average age of entry into sex trafficking is 16" and that prostitution is "an $800 million industry locally." It does not cite any sources for these statements.

Claims like these tend to be based on shoddy studies put out by anti-prostitution activists and from groups whose funding depends on proving that sex trafficking is a major issue. For instance, there's a persistent claim that the average age of entry into prostitution or the average age at which someone becomes a trafficking victim is somewhere between 13 and 16. Here's what sex worker Maggie McNeill told Reason about this "fact" back in 2014:

There's a researcher named Melissa Farley who does an awful lot of these kind of studies to provide numbers for the anti-prostitution people. And on her site she traced this supposed number of average of 13 to several old studies which all drew back to a study done here in LA actually in the early 80's—in '82. And that study found the average age of entry for underage sex workers—not for all sex workers, but only for underage ones—was about 16. In a different part of the study, they listed 13 as being the average age of first sexual contact. First kiss, first groping in a car, first whatever. Farley seems to have conflated the two numbers to represent that 13 as being the age not of first sexual contact, but of first accepting money for it. Even so, she still was only claiming that that was the age of origin for underage sex workers. Normal distortion, the gossip game syndrome, has changed that from underage to average of all.

Glenn Kessler at The Washington Post has fact-checked many statistics like these, systematically dismantling claims about the average age of entry into prostitution, the revenues generated by sex trafficking, human trafficking across the U.S.-Mexico border, and the number of total trafficking victims and child trafficking victims. These articles are a bit old by now, but common claims about sex trafficking are still rooted in the same shoddy data Kessler started tracing nearly a decade ago, so I highly recommend checking out his work.

The FBI Goes to Comic Con

Thankfully, there seem to be fewer nonsense statistics about sex trafficking in the media now than a decade ago, when trafficking panic was reaching a peak. But coverage of the National City surveillance tower serves as a good reminder that debunked myths are still out there—and still being used to justify police antics that otherwise might creep people out.

And while sex trafficking panic is arguably less omnipresent now than it was a decade ago, its press coverage should remind us how institutionalized this panic has become.

Authorities overseeing old-school vice stings routinely call them "human trafficking operations" or "sex trafficking stings" now, and reporters and people on social media just casually parrot this language. See, for instance, a recent announcement from Caflironia Attorney General Rob Bonta, who alleged that "sex traffickers capitalize on large events like Comic-Con to exploit victims" (never mind that these sorts of claims around big events have been debunked again and again) and bragged that "an investigation by the San Diego Human Trafficking Task Force" led to "14 individuals [being] arrested."

Local, national, and even international media have run with Bonta's framing in their headlines. "14 Arrested at Comic-Con In Anti-Human Trafficking Sting," NBC reported. "Fourteen arrests in undercover sex trafficking sting at San Diego Comic-Con convention," Sky News said.

If you read a few paragraphs down into Bonta's press release, you'll see that no sex trafficking or labor trafficking arrest resulted from this trafficking sting. The 14 people arrested were picked up for trying to pay another adult for sex. That other adult, however, turned out to be an undercover cop.

The FBI, Homeland Security Investigations, and the Naval Criminal Investigative Service assisted in these efforts.

This is the sort of vice sting that cops have been doing from time immemorial—and which many people started seeing as a waste of taxpayers' resources when it was done simply to arrest adult sex workers or their would-be clients. So now, authorities dress up their prostitution stings in the language of stopping sexual exploitation and slavery.

In this case, authorities also pretended to be prostitution clients and contacted sex workers. But instead of calling this what it is—a sex worker sting—they say they're recovering "potential victims of trafficking." If you frame all sex workers as potential trafficking victims, then you can call luring them to police under false pretenses a rescue mission, even if all that happens once they're in custody is they get "offered services." (That is, they get the phone numbers of some local charities.)

And while it's unclear if the "victims" here were arrested, this isn't uncommon in these sorts of operations, with police justifying it by saying they need to arrest them in order to save them.

The Comic Con operation did find one 16-year-old selling sex. (A minor selling sex is legally considered to be a sex trafficking victim, even if there is no trafficker.) Helping minors who are selling sex—whether they're actually being "trafficked" or not—is a good goal, of course, and people will point to this one teen as evidence hat the whole operation was a success. But arresting would-be sex buyers had nothing to do with finding this teenager; you didn't need to do one to do the other. And is the best way to help teenage sex workers really to terrify them in a sting and then turn them over to child welfare agents? Shelters and social services for victims—teen or adult—seem like a much more effective and humane approach.

More Sex & Tech News

• The Department of Justice is suing TikTok, claiming the company has violated the Children's Online Privacy Protection Act. Much of the complaint turns on the idea that TikTok should magically know whether any user is under age 13, even when users lie about their age or sign in with credentials from another website. The Justice Department also alleges that TikTok collected too much data on users it knew were under 13, and it objects to the fact that the company wouldn't delete minors' accounts upon parental request unless parents certified under penalty of perjury that they were in fact the users' parents.

• In a new report titled Abortion in the USA: The Human Rights Crisis in the Aftermath of Dobbs, Amnesty International shares stories from pregnant women in states where abortion is banned.

• The Consumer Product Safety Commission says Amazon is legally liable for recalling products sold by third parties.

• Some New Jersey lawmakers want to require adult-oriented websites to verify visitor ages. Meanwhile, a measure sponsored by Assemblyman Michael Inganamort (R–Morris) would require computer manufacturers to block porn sites unless a user pays a $20 fee, and to block "any website that facilitates prostitution."

• Another blow to "net neutrality": The U.S. Court of Appeals for the Sixth Circuit "blocked the Federal Communications Commission's reinstatement of landmark net neutrality rules, saying broadband providers are likely to succeed in a legal challenge," reports Reuters. The court had already delayed the rules—which were initially adopted under former President Barack Obama then rescinded by former President Donald Trump—after the commission voted in April to bring them back. The court on Thursday said "it would temporarily block net neutrality rules and scheduled oral arguments for late October or early November on the issue, dealing a serious blow to President Joe Biden's effort to reinstate the rules," Reuters reports.

Today's Image

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In Spartanburg County, South Carolina, on Interstate 85, police officers stop vehicles for traveling in the left lane while not actively passing, touching the white fog line, or following too closely. This annual crackdown is called Operation Rolling Thunder, and the police demand perfection.

Any infraction, no matter how minor, can lead to a roadside interrogation and warrantless search. However, a 21-month fight for transparency shows participating agencies play loose with South Carolina's Freedom of Information Act (FOIA), which requires the government to perform its business in an "open and public manner."

Motorists must follow state laws with exactness. But the people in charge of enforcement give themselves a pass.

Deny, Deny, Deny

The drawn-out FOIA dispute started on October 11, 2022, less than one week after a five-day blitz that produced nearly $1 million in cash seizures. Our public-interest law firm, the Institute for Justice, requested access to incident reports for all 144 vehicle searches that occurred during the joint operation involving 11 agencies: The Cherokee, Florence, Greenville, and Spartanburg County sheriff's offices; the Duncan, Gaffney, and Wellford police departments; the South Carolina Highway Patrol, Law Enforcement Division, and State Transport Police; and the U.S. Department of Homeland Security.

Our intent was simple. We wanted to check for constitutional violations, which can multiply in the rush to pull over and search as many vehicles as possible within a set time frame. South Carolina agencies have conducted the operation every year since 2006, yet no one has ever done a systematic audit.

Rather than comply with its FOIA obligation, Spartanburg County denied our request without citing any provision in the law. We tried again and then recruited the help of South Carolina resident and attorney Adrianne Turner, who filed a third request in 2023.

It took a lawsuit to finally pry the records loose. Turner filed the special action with outside representation.

Key Findings

The incident reports, released in batches from March through July 2024, show why Spartanburg County was eager to prevent anyone from obtaining them.

• Over 72 percent of vehicle searches during Operation Rolling Thunder in 2022 produced nothing illegal. Officers routinely treated innocent drivers like criminals.
• Carrying any amount of cash is legal, but officers treated currency as contraband. The records describe no single case in which officers found a large amount of cash and did not seize it. All money was presumed dirty.
• Officers pressured property owners to sign roadside abandonment forms, giving up claims to their cash on the spot.
• South Carolina residents mostly got a pass. Officers focused on vehicles with out-of-state plates, rental cars, and commercial buses. Over 83 percent of the criminal suspects identified during warrantless searches lived out of state. Nearly half were from Georgia.
• Black travelers were especially vulnerable. Nearly 74 percent of the suspects identified and 75 percent of the people arrested were black. This is more than triple the South Carolina black population of 25 percent.

Working in the Shadows

While these records shine a light on police conduct, still more secrets remain.

By policy, the Spartanburg County Sheriff's Office and partner agencies do not create incident reports for every search. They only document their "wins" when they find cash or contraband. They do not document their "losses" when they come up empty.

Thanks to this policy, Spartanburg County has no records for 102 of the 144 searches that occurred during Operation Rolling Thunder in 2022. Nowhere do officers describe how they gained probable cause to enter the vehicles where nothing was found. The police open and close investigations and then act like the searches never happened.

This leaves government watchdogs in the dark—by design. They cannot inspect public records that do not exist. Victims cannot cite them in litigation. And police supervisors cannot review them when evaluating job performance.

Even if body camera video exists, there is no paper trail. This lack of recordkeeping undercuts the intent of FOIA. Agencies dodge accountability by simply not summarizing their embarrassing or potentially unconstitutional conduct.

The rigged system is rife with abuse. Available records show that officers routinely order drivers to exit their vehicles and sit in the front seat of a patrol car. If people show signs of "labored breathing," "nervousness," or being "visibly shaken," the police count this toward probable cause.

Officers overlook that anxiety is normal when trapped in a police cruiser without permission to leave. Even people who value their Fourth Amendment right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" can break under pressure and consent to a search.

If travelers refuse, officers can bring K9 units to the scene for open-air sniffs. Having no drugs in the vehicle does not always help. False positives occurred during Operation Rolling Thunder, but the lack of recordkeeping makes a complete audit impossible.

Intimidation, harassment, and misjudgment are easily hidden. The police tell travelers: "If you have nothing to hide, you should let us search." But when the roles are reversed and the public asks questions, agencies suddenly want to remain silent.

The post Operation Rolling Thunder: The Shocking Truth Behind Spartanburg's Traffic Stops appeared first on Reason.com.

Democrats in Congress have reintroduced a bill that would revive the ability to sue federal law enforcement officers for constitutional violations like excessive force, following a series of Supreme Court decisions that have made it practically impossible to do so.

Sen. Sheldon Whitehouse (D–R.I.) and Reps. Hank Johnson (D–Ga.) and Jamie Raskin (D–Md.) reintroduced the Bivens Act in the Senate and House, respectively, this week. The legislation would amend the Civil Rights Act of 1871—a federal statute that allows people to sue the government for civil rights violations—to include federal officials acting under the color of law, as well as state and local officials.

"Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law," Whitehouse said in a press release. "Our Bivens Act would end the confusing judicial precedent that for too long has prevented victims from holding federal officials accountable and securing compensation for constitutional violations."

In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that federal agents may be sued when they violate someone's rights. But subsequent Supreme Court rulings over the years have steadily narrowed the scope of so-called Bivens claims to the point where it's a dead letter.

In the most recent case, Egbert v. Boule, the Supreme Court ruled in 2022 that a bed-and-breakfast owner could not sue a Border Patrol agent who had allegedly assaulted him and then retaliated after he complained. Reason's Damon Root summarized the case: 

At issue were the actions of a border patrol agent who sought to question one of the guests at a Washington state bed-and-breakfast about the guest's immigration status. When owner Robert Boule told the agent, Erik Egbert, to leave his property, Egbert allegedly assaulted Boule. Then, when Boule complained about the alleged assault to the agent's superiors, Egbert allegedly retaliated by asking the IRS to investigate Boule, who was audited.

The Court ruled 6–3 that Boule could not bring a claim against Egbert for excessive force or First Amendment retaliation. 

That same term, the Court declined to hear petitions involving cases where a St. Paul police officer invented a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges and where a Department of Homeland Security agent allegedly tried to kill a man because of an argument involving his son.

As Reason's Billy Binion wrote at the time, "A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding."

That's not just the opinion of some whacky libertarians either. Federal Judge Don Willett complained in a 2021 opinion that the Supreme Court has gutted Bivens to the extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The Bivens Act is supported by numerous civil rights and watchdog groups, including the American Civil Liberties Union, the Drug Policy Alliance, and the Project on Government Oversight.

The post New Bill Would Revive the Right To Sue Federal Cops for Constitutional Violations appeared first on Reason.com.

Jamey Noel, former Clark County, Indiana, sheriff and Republican Party chairman, is facing 25 felony counts relating to claims that he used jail employees for personal work and that he used credit cards from a volunteer fire department he headed and money from the jail commissary to make personal purchases, among other allegations. A state audit found more than $900,000 worth of "questionable" or "unsupported" purchases.

The post Brickbat: There for the Taking appeared first on Reason.com.

Last week, Reason reported on the rising trend of Colorado police departments increasingly using aerial drones as first responders to certain 911 calls.

A new investigation out this week reveals how such a system could work in practice, with startling implications for privacy and civil liberties.

In WIRED, Dhruv Mehrotra and Jesse Marx write about Chula Vista, a town in southern California roughly equidistant between San Diego and Tijuana. In 2018, the Chula Vista Police Department (CVPD) launched the Drone as First Responder (DFR) program, allowing 911 operators to deploy drones either in lieu of or in addition to uniformed officers—the first U.S. city to do so.

DFR "is not a replacement for officers, it's an enhancement," Police Chief Roxana Kennedy told KPBS at the time. In the program's first week, drones responded to 30 calls and led to three arrests, including a domestic violence case in which a man suspected of stabbing a woman fled back to a homeless encampment and a pursuing drone led police to his location. The program was initially limited to within one mile of the police station, but it expanded over time before receiving federal authorization to operate citywide in March 2021.

In the nearly six years since, as Mehrotra and Marx detail, CVPD drones have taken nearly 20,000 flights, "often dispatched for serious incidents like reports of armed individuals [but] also routinely deployed for minor issues such as shoplifting, vandalism, and loud music. Early in the Covid-19 pandemic, the city even used drones to broadcast public service announcements to homeless encampments."

WIRED examined "nearly 10,000 drone flight records from July 2021 to September 2023," encompassing "more than 22.3 million coordinates from flight paths," to assess CVPD's claim that drones are only dispatched in response to specific 911 calls or lawful searches and do not merely go roaming in search of suspicious activity.

"Drones were used in about 7 percent of the city's service requests," the authors found, including "nearly half of the incidents involving reports of armed individuals and about a quarter of those related to violent crime," plus mental health and domestic violence calls.

"The vast majority" of the 10,000 flight records analyzed "could be linked to corresponding 911 calls. But not all of them." In fact, about 10 percent "lacked a stated purpose and could not be connected to any relevant 911 call; for 498 flights, the department lists the reason as an 'unknown problem.'" Further, "nearly 400 [flights] didn't come within half a mile of where any call in the preceding half hour originated."

Even specifically sanctioned flights may be cause for concern: "Operators are trained to start recording with the drone's camera immediately, capturing video throughout the entire flight, from takeoff to landing," Mehrotra and Marx note. The cameras, "powerful enough to capture faces clearly and constantly recording while in flight, have amassed hundreds of hours of video footage of the city's residents," the vast majority of which the city has refused to release.

"On average, each drone flight passes above 13 census blocks and potentially exposes approximately 4,700 of the residents below to a drone's camera," the WIRED analysis found. And potential exposure did not fall equally: "Residents on a typical block in the working-class and largely immigrant west side of Chula Vista had drones in the skies above 10 times longer than a resident of a typical east-side block," Mehrotra wrote in WIRED's Politics Lab newsletter yesterday. West-side residents "alleged that police drones were following them personally, lingering unnecessarily in their backyards, or watching them during their most intimate moments," and others complained about the noise of drone rotors. (The CVPD claimed the disparity is due to the unequal number of 911 calls that each area receives; the WIRED analysis "confirm[ed] that this is largely the case.")

Interestingly, support for the drone program is also strongest among the lower-income Chula Vista residents most likely to be subjected to it. One Latino man—who lives in an apartment complex that CVPD drones have flown over more than 300 times since July 2021—told WIRED that the drones make him feel safer, especially after a stranger tried to steal his child and police deployed a drone to look for the suspect. This isn't unheard of: Polls show black Americans are significantly more afraid of the police than their white neighbors, yet they still want a strong, effective police presence in their neighborhoods.

Regardless, Chula Vista's drone program could be a concerning sign of where American policing is headed. Even apart from DFR, city residents have been subject to a shocking amount of surveillance in recent years: automated license plate readers, facial recognition software, and a partnership with Amazon for access to its Ring doorbell cameras. In December 2017, the CVPD partnered with a company to share its data with other law enforcement agencies, including federal agencies like Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

As Colorado's example makes clear, police departments increasingly see DFR programs as a plausible alternative to traditional policing, in which an officer would be dispatched to the scene of an emergency. While that's certainly true, it would also expose everyday citizens to a shocking new world of state surveillance.

The post Police Flew Drones Over One California City Nearly 20,000 Times in 6 Years appeared first on Reason.com.

Instead of dispatching an officer each time, several Colorado police departments may soon dispatch a drone to respond to certain 911 calls. While the proposal has promise, it also raises uncomfortable questions about privacy.

As Shelly Bradbury reported this week in The Denver Post, "A handful of local law enforcement agencies are considering using drones as first responders—that is, sending them in response to 911 calls—as police departments across Colorado continue to widely embrace the use of the remote-controlled flying machines."

Bradbury quotes Arapahoe County Sheriff Jeremiah Gates saying, "This really is the future of law enforcement at some point, whether we like it or not." She notes that while there are currently no official plans in place, "Gates envisions a world where a drone is dispatched to a call about a broken traffic light or a suspicious vehicle instead of a sheriff's deputy, allowing actual deputies to prioritize more pressing calls for help."

The Denver Police Department—whose then-chief in 2013 called the use of drones by police "controversial" and said that "constitutionally there are a lot of unanswered questions about how they can be used"—is also starting a program, buying several drones over the next year that can eventually function as first responders.

In addition to Denver and Arapahoe County, Bradbury lists numerous Colorado law enforcement agencies that also have drone programs, including the Colorado State Patrol, which has 24 drones, and the Commerce City Police Department, which has eight drones and 12 pilots for a city of around 62,000 people and plans to begin using them for 911 response within a year.

In addition to helping stem the number of calls an officer must respond to in person, some law enforcement agencies see this as a means of saving money. One Commerce City police official told The Denver Post that "what we see out of it is, it's a lot cheaper than an officer, basically." And Denver intends for its program to make up for an $8.4 million cut to the police budget this year.

On one hand, there is certainly merit to such a proposal: Unless they're of the Predator variety, drones are much less likely than officers to kill or maim innocent civilians—or their dogs. And as Gates noted, drones could take some of the busywork out of policing by taking some of the more mundane tasks off an officer's plate.

But it also raises privacy concerns to farm out too much police work to unmanned surveillance aircraft.

"Sending out a drone for any time there is a 911 call, it could be dangerous and lead to more over-policing of communities of color," Laura Moraff, a staff attorney for the American Civil Liberties Union of Colorado, told The Denver Post. "There is also just the risk that the more that we normalize having drones in the skies, the more it can really affect behavior on a massive scale, if we are just looking up and seeing drones all over the place, knowing that police are watching us."

Indeed, while this sort of dystopic panopticon would certainly make life easier for officers day to day, it would signal the further erosion of the average Coloradan's Fourth Amendment rights.

In Michigan, for example, police hired a drone pilot to take pictures of a person's property rather than go to the trouble of getting a warrant. Earlier this month, the state supreme court upheld the search, ruling that since the purpose was for civil code enforcement and not a criminal violation, it didn't matter whether the search violated the Fourth Amendment.

Thankfully, there are some positive developments on that front: In March, the Alaska Supreme Court ruled against state troopers who flew a plane over a suspect's house and took pictures with a high-powered zoom lens to see if he was growing marijuana.

"The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant," the court found. "Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is 'inconsistent with the aims of a free and open society.'"

The post Colorado Will Replace Cops With Drones for Some 911 Calls appeared first on Reason.com.

A Portland, Maine, police department after-action report on a mass shooting last year describes a scene of "utter chaos" with officers who had not been dispatched showing up in civilian clothing, some of them dressed similarly to how the gunman was described as being dressed. The report said this could have led to an accidental friendly fire incident. It also said a tactical team from another agency almost crashed its armored vehicle into another police vehicle. Officers also reported smelling alcohol from inside that tactical team's vehicle, and members of the team said they had just come from a funeral.

The post Brickbat: All Hands on Deck appeared first on Reason.com.

Prosecutors in Texas last week dismissed the criminal case against a journalist who, in 2021, was arrested, strip-searched, and jailed for filming police. But his lengthy legal battle is in some sense just beginning and once again demands we probe the idea that real journalists are entitled to a different set of rights than the public.

That's because Justin Pulliam, the man in question, is a citizen journalist. He is not employed by an outlet. Rather, he publishes his reporting to his YouTube channel, Corruption Report, which, true to its name, is unapologetically skeptical of state power and supportive of transparency.

The Fort Bend County Sheriff's Office (FBSCO) has allegedly been vexed by his audacity. In July 2021, Pulliam was expelled by police from a press conference because they alleged he did not qualify as media, and in December of that same year, he was arrested for videoing police at a mental health call, despite that he had stationed himself about 130 feet away from the interaction. Officer Taylor Rollins demanded Pulliam move back even further, and he obliged, although he continued to film the deputy speaking to other bystanders at the scene (none of whom were arrested).

That didn't end well for Pulliam, who was charged with interfering with police duties. (According to his complaint, Officer Ricky Rodriguez, who assisted with the arrest, told another cop at the jail that the ordeal would teach Pulliam a lesson "for fucking with us.") In April 2023, a jury was not able to reach a verdict in the case, with five jurors wanting to acquit and one urging to convict. It took law enforcement more than a year to decide not to pursue the case further.

One wonders if the Fort Bend government is smartly allocating resources in support of public safety when it doggedly went after a case because someone filmed them. Yet at a deeper level, it's worth asking if law enforcement would have taken the case to trial at all had Pulliam worked for a formal media outlet. My guess is no.

It is difficult to reconcile those two things. Journalism is, after all, an activity, consisting of collecting information and reporting it to the public. That venture is not exclusively available to people working at a full-time newsgathering organization, and the strength of the First Amendment should not hinge on whether or not you are on a media outlet's payroll. Even if Pulliam didn't consider himself a journalist at all—citizen or otherwise—his right to film the government employees he pays with his taxes should remain intact. It certainly shouldn't come at the expense of his freedom.

Whether or not he will be able to make that case before a jury in civil court is yet to be determined. Last June, Judge David Hittner of the U.S. District Court for the Southern District of Texas allowed Pulliam's federal lawsuit to proceed, declining to award the defendants qualified immunity, the legal doctrine that shields state and local government actors from such claims if their alleged misconduct was not already "clearly established" in the law. 

"The Individual Defendants assert no case law to support their proposition that an indictment precludes a claim for first amendment infringement," wrote Hittner. "Indeed, based on the facts alleged in the complaint, it appears Pulliam was singled out and arrested for exercising his rights under the First Amendment."

Pulliam, however, is not in the clear. He will next have to convince the U.S. Court of Appeals for the 5th Circuit, which has considered a similar case in recent months: that of Priscilla Villarreal, the citizen journalist in Laredo, Texas, who police arrested in 2017 using an obscure statute criminalizing the solicitation of nonpublic information if there is the "intent to obtain a benefit." If that description sounds a lot like standard journalism—seeking information not yet public—that's because it is. But despite attracting some strange bedfellows in her defense, Villarreal has not fared well in court.

While her case is not identical to Pulliam's, they both raise very similar questions, particularly as it relates to the idea that a certain class of journalists should get more rights than others. "Villarreal and others portray her as a martyr for the sake of journalism," wrote Judge Edith Jones in her majority opinion dismissing Villarreal's suit and giving qualified immunity to the police. "That is inappropriate," according to Jones, because Villarreal, who posts her reporting to her popular Facebook page Lagordiloca, is not a "mainstream, legitimate media outlet." Her free speech rights are suffering as a result.

The post This Journalist Was Arrested, Strip-Searched, and Jailed for Filming Police. Will He Get Justice? appeared first on Reason.com.

Britain's signals intelligence spy chief raised eyebrows this week with warnings that Russia is coordinating both cyberattacks and physical acts of sabotage against the West. There's evidence to back her claims—and the West may be returning the favor. Coming soon after FBI Director Christopher Wray warned that China is targeting American infrastructure, it looks like the world is not only fracturing once again, but that the hostile blocs are engaged in covert warfare.

Rumors of War

"We are increasingly concerned about growing links between the Russian intelligence services and proxy groups to conduct cyberattacks as well as suspected physical surveillance and sabotage operations," Government Communications Headquarters (GCHQ) Director Anne Keast-Butler told an audience at the United Kingdom government-sponsored CyberUK 2024 conference. "Before, Russia simply created the right environments for these groups to operate, but now they are nurturing and inspiring these non-state cyber actors in some cases seemingly coordinating physical attacks against the West."

Keast-Butler, whose agency is comparable to the U.S. National Security Agency (NSA), also called out China, Iran, and North Korea as cybersecurity dangers. But naming Russian officials as being behind "physical attacks" raises the stakes. Sadly, her claims are well-founded.

Sabotage, Espionage, and Other Mischief

"A 20-year-old British man has been charged with masterminding an arson plot against a Ukrainian-linked target in London for the benefit of the Russian state," CBS News reported last month. That wasn't an isolated incident.

"In April alone a clutch of alleged pro-Russian saboteurs were detained across the continent," The Economist noted May 12 in describing what it called a "shadow war" between East and West. "Germany arrested two German-Russian dual nationals on suspicion of plotting attacks on American military facilities and other targets on behalf of the GRU, Russia's military intelligence agency. Poland arrested a man who was preparing to pass the GRU information on Rzeszow airport, the most important hub for military aid to Ukraine. Britain charged several men over an earlier arson attack in March on a Ukrainian-owned logistics firm in London whose Spanish depot was also targeted."

The GCHQ chief's warnings coupled with reality on the ground are alarming in themselves. Worse, they come after FBI Director Christopher Wray issued similar cautions in April about China.

"The PRC [People's Republic of China] has made it clear that it considers every sector that makes our society run as fair game in its bid to dominate on the world stage, and that its plan is to land low blows against civilian infrastructure to try to induce panic and break America's will to resist," Wray told the Vanderbilt Summit on Modern Conflict and Emerging Threats in Nashville, Tennessee.

Wray clarified that, by "infrastructure," he meant "everything from water treatment facilities and energy grids to transportation and information technology."

If that doesn't make you want to check that your pantry is stocked and that the water filter and generator are in working order, nothing will.

A Game Both Sides Can Play

Of course, in war of any sort, the implication is that both sides are involved in conflict. Western intelligence officials are loud in their warnings about foreign threats, but less open regarding just what their own operatives might be doing in Russia, China, and elsewhere. Still, there's evidence that this is hardly a one-sided war, shadowy though it may be.

In June 2022, The New York Times reported that Ukraine's defensive efforts relied heavily on "a stealthy network of commandos and spies rushing to provide weapons, intelligence and training." In addition to Americans, the story noted, "commandos from other NATO countries, including Britain, France, Canada and Lithuania, also have been working inside Ukraine."

American journalist and combat veteran Jack Murphy goes further, claiming the CIA, working through an allied spy service "is responsible for many of the unexplained explosions and other mishaps that have befallen the Russian military industrial complex." The targets include "railway bridges, fuel depots and power plants," he adds.

And if you wonder who blew up Nord Stream 1 and 2, well, so do a lot of people. Russia was initially accused, but it didn't make a lot of sense for the country's forces to destroy pipelines that generated revenue and fed western dependence on Russian natural gas. Since then, Denmark and Sweden have closed inconclusive investigations, journalist Seymour Hersh blamed American officials, and a report by Der Spiegel and The Washington Post placed responsibility on a rogue Ukrainian military officer.

The Wider War Is Here

Taken all together, the warnings from Keast-Butler and Wray, as well as acts of sabotage and arrests of foreign agents suggest that fears of a wider war resulting from Russia's continuing invasion of Ukraine may miss the point; the war could already be here. People looking for tanks and troops are overlooking cyber intrusions, arson, bombings, and other low-level mayhem.

"Russia is definitely at war with the West," Oleksandr Danylyuk of the Royal United Services Institute, a British defense and security think tank, told NBC News earlier this week.

Russian officials seem to embrace that understanding, with Kremlin spokesman Dmitry Peskov commenting in March that the invasion of Ukraine, originally referred to by the euphemism "special military operation," is now more serious. "It has become a war for us as the collective West more and more directly increases its level of involvement in the conflict," he said.

Fortunately, a shadow war of the sort around us is less destructive than open military conflict, especially when the hostilities involve nuclear-armed powers. It's far better that spies hack the email accounts of government officials, as happened in the case of a Russian cyberattack on Germany's ruling Social Democrats, than that cities burn. But civilians still must live with the consequences of combatants attempting to do each other harm—particularly when the harm is to infrastructure on which regular people rely.

So, welcome to the world of global shadow war. Try to not become collateral damage.

The post World War War III May Already Have Started—in the Shadows appeared first on Reason.com.

The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."

At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.

One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.

Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.

Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)

"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it." 

Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."

But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).

The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."

At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.

Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.

Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.

The post Can This Woman Sue the Rogue Prosecutor Who Allegedly Helped Upend Her Life? appeared first on Reason.com.

Former vice cop Andrew Mitchell has been sentenced to 11 years in prison after pleading guilty late last year to two counts of deprivation of rights under color of law and one count of tampering. Mitchell, who was employed for many years as a police officer in Columbus, Ohio, is accused of picking up sex workers and sexually assaulting them.

This week, a federal judge sentenced him to the maximum prison sentence recommended by prosecutors, plus a fine of $300 and five years of supervised release.

It's something, at least.

But his victims will receive no restitution payment. And last year, Mitchell walked on much more serious charges involving the killing of Donna Castleberry.

Castleberry's Death

Mitchell fatally shot the 23-year-old while she was trapped in his unmarked police car. He later claimed he killed Castleberry in self-defense after she stabbed him in the hand.

"Donna entered the front passenger door of Mitchell's vehicle and sat in the passenger seat next to Mitchell," according to a civil complaint against Mitchell filed by Castleberry's sister. "Mitchell than [sic] drove her to secluded location at or near South Yale Avenue, Columbus, Ohio in an alley and parked his vehicle in a manner which would prevent Donna from exiting the vehicle."

The Franklin County Coroner's Office called the death a homicide, and a grand jury indicted Mitchell on homicide and involuntary manslaughter charges. But a jury couldn't reach a verdict in the first trial, leading a Franklin County Common Pleas Court judge to declare a mistrial. And a jury returned a verdict of not guilty in the second trial, despite the multiple holes in Mitchell's story.

Mitchell also faced a civil lawsuit from a Jane Doe who alleged that in 2017, Mitchell told her he would arrest her for outstanding warrants but also said "give that pretty ass up and you won't go to jail." According to Doe's complaint, Mitchell handcuffed her to the backseat of the car and then raped her, then picked her up and did it again the following year. In 2022, the plaintiff in the Jane Doe case dismissed the case and it's not clear why. It's also unclear whether this Jane Doe is one of the women Mitchell is accused of detaining in the federal case.

The Federal Case

In 2019, federal prosecutors accused Mitchell of picking up sex workers on false pretenses and then trapping them in his car and sexually assaulting them. He was charged with nine criminal counts, including multiple counts of deprivation of rights under color of law and multiple counts of tampering with a witness, victim, or informant.

Mitchell told one victim "he was a police officer and acted as if he were doing a check for any outstanding warrants on the victim," then "used this ruse to handcuff the victim to the doorknob of his vehicle," according to a press release from the U.S. Attorney's Office last December. "He drove the victim to a nearby parking lot with multiple dumpsters and forcible [sic] held and detained the victim against her will before dropping her off at her boyfriend's residence." Mitchell picked up another victim and "began discussing the victim's rates for sexual activity before announcing that he was an officer with the vice unit and said she was going to jail," according to prosecutors. "Mitchell kidnapped the victim and drove her to Lindbergh Park, holding her against her will."

That's the activity to which Mitchell pleaded guilty, along with removing and destroying potential evidence from a rental apartment he owned. (Specifically, he disposed of and bleached potential evidence "so the FBI could not gather evidence if they came to search it," per his pleas.)

But this isn't the whole story.

Prosecutors initially accused him of sexually assaulting the two women he picked up, and though this was not mentioned as part of the announcement of Mitchell's plea, prosecutors explain why in a sentencing report.

Mitchell's lawyers "objected to all references to sexual assault…within the presentence report as the negotiated plea agreement and accompanying Statement of Facts did not stipulate to the occurrence of any sexual activity," notes the government's sentencing memorandum. "The plea agreement was the result of significant negotiation in the face of a potentially very difficult trial for both sides. While both victims have been cooperative with law enforcement and indicated a willingness to testify, they both also indicated a strong preference for this case to be resolved short of trial. This dilemma led to this resolution and the need for a factual determination of this issue to be done at sentencing."

Nonetheless, "the evidence supports a finding that sexual assaults occurred," the government stated. "While Mitchell continues to deny any sexual involvement with these women, there is no explanation for [his] admitted behavior" of handcuffing one victim to a doorknob or taking one victim to a secluded park and detaining her there unless "more was going on than just Mitchell abusing the powers of his badge to only detain someone. "Further, significant evidence corroborated the testimony of the victims that Mitchell took advantage of the depravation of their liberty to further assault and sexually victimize them."

More Victims? 

Castleberry and the two victims in the federal case are almost certainly not the only women that Mitchell preyed on.  "Mitchell intimidated and hindered at least three other additional victims from communicating with law enforcement and the ongoing grand jury looking into his illegal conduct," the government alleges in its sentencing report.

Prosecutors also note the vulnerability sex workers face when a cop is their assailant.

"Mitchell purposely targeted [sex workers] in the belief that their complaints of assault and sexual compromise would not be believed by law enforcement suspected of being too aligned with one of their own," the government claims.

"Throughout the FBI investigation, female interviewees explained their doubts and hesitation in reporting Mitchell due to fears of retaliation and being disbelieved. Mitchell routinely used this dynamic to his advantage as both a police officer (and a landlord) in seeking sexual conquest and control while ignoring the law he was sworn to uphold."

Columbus Vice

"Andrew Mitchell betrayed his oath, the values of the Columbus Division of Police and the trust of our community. He used his position to target and exploit some of the most vulnerable in our community. We hope the close of this dark, painful chapter brings some measure of peace to everyone he wronged," the Columbus Division of Police said in a statement last December.

Mitchell isn't the only member of the Columbus Division of Police to have faced misconduct allegations in recent years, though the accusations against him were by far the most serious.

Members of the vice unit improperly arrested Stormy Daniels in 2018.

Two of the cops involved in Daniels' arrest—Steven G. Rosser and Whitney R. Lancaster—were arrested on federal criminal charges unrelated to the Daniels case but also involving strip clubs. Lancaster was acquitted at trial but Rosser was found guilty of conspiracy against rights. Rosser was sentenced to 18 months in federal prison.

Columbus police temporarily disbanded the vice squad in 2019 and had the FBI's public corruption task force look into it.

Police replaced the vice squad with something called the Police and Community Together (PACT) Unit, which was meant to be more transparent and accountable. The PACT page on the city of Columbus website now says "page not found."

These days, "prostitution arrests are made by uniformed PACT officers in marked cruisers," reported Columbus Monthly. "'PACT also has a policy to not trap or block women in their vehicles. If an individual wants out of the vehicle, they let them out,'" former Deputy Police Chief Jennifer Knight told the publication.

The post Cop Who Dodged Sentence for Killing Sex Worker Gets 11 Years for Abducting More Sex Workers appeared first on Reason.com.

A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person's property, should the owner be strapped with the bill?

There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that "police powers" provide an exception to the Constitution's promise to give just compensation when the government usurps property for public use.

It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.

In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter's house nearby.

The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs' home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.

But despite Mollie Slaybaugh's offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government's claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.

"Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders," reads her complaint. "When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief's salary each year."

That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court's view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone's property in the exercise of "police powers."

The Slaybaughs are unfortunately not alone. The notion that "police powers" immunize the government from liability is what doomed Leo Lech's lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.

Similar claims are continuing to accumulate. The city of Los Angeles refused to compensate Carlos Pena after a SWAT team destroyed his North Hollywood print shop in pursuit of a suspect who barricaded himself inside, and the government in McKinney, Texas, turned away Vicki Baker after police ruined her home and much of its contents while, again, trying to catch a fugitive. After a legal odyssey of sorts, Baker was able to secure a judgment from a federal jury—though that was ultimately overturned by the U.S. Court of Appeals for the 5th Circuit, which ruled there was a "necessity" exception to the Takings Clause. Most recently, the local government in South Bend, Indiana, rejected Amy Hadley's pleas for help after police mutilated her home in search of a suspect she'd never met and who'd never been to her home. An officer's botched investigation led law enforcement to her house, and she has been forced to pay the price of that blunder. Accountability should not just be for the little people.

"The plain text of the Just Compensation Clause contains no exemptions for the police power, for public necessity, or for damage done by law enforcement. And the government bears the burden of establishing that any such exception is grounded in our nation's history and tradition," Jeffrey Redfern, an attorney with the Institute for Justice representing the Slaybaughs, told the 6th Circuit yesterday. "But the government hasn't even tried to meet that burden. Instead it asks this court to blindly follow decisions from other jurisdictions—decisions whose reasoning the government isn't really defending."

In some sense, the government is throwing what it can at the wall to see what sticks. And a fair amount of nonadhesive material is successfully latching on—an exception to the laws of nature that few entities other than the government could reasonably hope to enjoy.

The post A SWAT Team Blew Up This Innocent Couple's Home and Left Them With the Bill. Was That Constitutional? appeared first on Reason.com.

Dennis Powanda and Vincent Yakaitis are bound together by a common experience: They were both criminally charged in connection with an attempted burglary. Powanda was the burglar, and Yakaitis was the property owner.

Ah, justice.

Indeed, that's not a misprint, parody, or a bad joke (although I wish it were the latter). Powanda was arrested and charged with criminal trespass and burglary, along with other related offenses, for executing the botched raid a little before 2:00 a.m. in February 2023 at Yakaitis' property in Port Carbon, Pennsylvania. The government charged Yakaitis, who is in his mid-70s, with using a firearm without a license after he shot Powanda, despite that it appears prosecutors agree Yakaitis justifiably used that same firearm in self-defense.

Whatever your vantage point—whether you care about criminal justice reform and a fair legal system, or gun rights, or all of the above—it is difficult to make sense of arresting and potentially imprisoning someone over what essentially amounts to a paperwork violation. That injustice is even more glaring when considering that Powanda, 40, allegedly charged at Yakaitis, who happens to be about three and a half decades older than Powanda.

Pennsylvania's permitting regime does carve out a couple of exceptions, one of which would seem to highly favor Yakaitis. Someone does not need a license to carry, according to the law, "in his place of abode or fixed place of business." Yakaitis owned the home Powanda attempted to burglarize. The catch: He didn't live there—it reportedly had no tenants at the time of the crime—opening a window for law enforcement to charge him essentially on a technicality.

If convicted, Yakaitis faces up to five years in prison and a $25,000 fine. Quite the price to pay for protecting your life on your own property. The misdemeanor charge also implies that Yakaitis has no history of using his weapon inappropriately, or any criminal record at all, as Pennsylvania law classifies his particular crime—carrying a firearm without a license—as a felony if the defendant has prior criminal convictions and would be disqualified from obtaining such a license. In other words, we can deduce that Yakaitis was a law-abiding citizen and eligible for a permit, which means he is staring down five years in a cell for not turning in a form and paying a fee to local law enforcement. OK.

Yakaitis is not the first such case. In June, law enforcement in New York charged Charles Foehner with so many gun possession crimes that if convicted on all of them he would face life in prison. Police came to be aware of his unlicensed firearms when Foehner defended himself against an attempted mugger—the surveillance footage is here—after which they searched Foehner's home and found that only some of his weapons were licensed with the state.

Prosecutors classified it as a justified shooting. And then they hit Foehner with an avalanche of criminal charges that would have resulted in a longer prison sentence than his assailant would have received, had he survived.

There's also LaShawn Craig, another New York City man whose case I covered in December. He, too, shot someone in self-defense and he, too, was arrested for doing so without a license. Like Foehner, he was charged with criminal possession of a weapon, a violent felony in New York. For a paperwork violation.

New York is a particularly relevant case study on the subject, as its highly restrictive concealed carry framework was the subject of a landmark Supreme Court case—New York State Rifle & Pistol Association, Inc. v. Bruen—which the majority disemboweled. It wasn't just conservative gun rights advocates who wanted that ruling, although you'd be forgiven for thinking so based on how polarized this debate tends to be. That Supreme Court decision also attracted support from progressive public defenders with The Black Attorneys of Legal Aid, The Bronx Defenders, and Brooklyn Defender Services. As I wrote in June about the amicus brief they submitted to the Court:

[The public defenders] offered several case studies centered around people whose lives were similarly upended. Among them were Benjamin Prosser and Sam Little, who had both been victims of violent crimes and who are now considered "violent felons" in the eyes of the state simply for carrying a firearm without the mandated government approval. Little, a single father who had previously been slashed in the face, was separated from his family while he served his sentence at the Vernon C. Bain Center, a notorious jail that floats on the East River. The conviction destroyed his nascent career, with the Department of Education rescinding its offer of employment.

In many jurisdictions, including New York, it can be expensive and time-consuming to get the required license, which in turn makes the Second Amendment available only to people of a certain class.

So where do we go from here? Those skeptical of rolling back concealed carry restrictions may take comfort in the fact that this doesn't have to be black and white. Governments, for example, can "give eligible persons a 30-day grace period to seek and obtain a permit after being charged, then automatically drop charges and expunge record once obtained," offers Amy Swearer, a senior legal fellow at the Heritage Foundation, or "remove the criminal penalty entirely" and perhaps "make it a fineable infraction," like driving without a license.

Whatever the case, it should be—it is—possible to balance public safety with the right to bear arms, and, as an extension, the right to self-defense. To argue otherwise is to embolden a legal system that incentivizes elderly men like Yakaitis to sit down and take it when someone threatens their life.

The post This Elderly Man Was Arrested After Shooting a Burglar in Self-Defense—for Carrying the Gun Without a License appeared first on Reason.com.

May Day was coming up and the feds were worried. In April 2015, the FBI and Department of Homeland Security sent out a bulletin warning that "anarchist extremists will probably engage in criminal or violent activity in one or more US cities on 1 May 2015 and may attempt to co-opt legal protest activity to carry out attacks."

It was the anniversary of the deadly 1886 labor unrest in Chicago's Haymarket. Several anarchists were executed for the violence back then, and in the 2015 bulletin's words, May 1 became "an international day honoring workers' rights that frequently results in anarchist extremist violence both domestically and internationally." To emphasize that anarchism was still a live threat, the Feds listed several recent anarchist attacks in their bulletin.

One of them, the firebombing of a congressional office in Kansas City, Missouri, was serious stuff. Police car tires were also slashed in Bloomington, Indiana; anonymous anarchists claimed online that the vandalism was in "Solidarity with the revolt in Ferguson." But another incident was more Parks and Recreation than V for Vendetta.

"In October 2014, 'some Bull City anarchists' chained the front door and glued the locks to a parking lot at a government facility in Durham, North Carolina, according to media reporting," the memo read. "The graffiti on the front of the building stated 'Solidarity with Missouri Rebels' and '[Expletive] the Police.'"

Reason was unable to locate any media reports from October 2014 mentioning the phrase "Bull City anarchists" or a parking lot incident in Durham like the one the bulletin describes.

Journalist Emma Best obtained a copy of the bulletin through a Freedom of Information Act (FOIA) request and published it to the public records platform MuckRock late last month. The FBI heavily redacted the version it sent Best. Reason also found an original copy of the bulletin in the BlueLeaks document dump, a trove of homeland security "fusion center" files released by hackers in June 2020.

The parts of the bulletin that the FBI had chosen to redact are a story unto themselves. The original version states that there is "no specific credible reporting to indicate anarchist extremists are planning violent criminal activity." But the FBI censored that line in the version it sent to MuckRock and Best under FOIA.

Curiously, the FOIA version also censored the assessment that "anti-police and law enforcement sentiment will likely continue to serve as a prominent motivator for anarchist extremists in 2015, barring any significant changes in anarchist extremist rhetoric or major public events that could galvanize anarchist extremists against other traditional targets."

Editorializing aside, that prediction turned out to be true. Anarchists played a significant role in the Black Lives Matter protests of 2020 and were often blamed for violence during the unrest. 

In the FOIA version of the bulletin, the FBI redacted its specific recommendations for local police, citing the "law enforcement techniques" exemption to the Freedom of Information Act. Not that any of the advice was hard to guess. Basically, if police see anarchists training or gathering weapons and barricade materials, they should be extra vigilant and try to confiscate the weapons.

But, the Feds warned, local police shouldn't get too paranoid.

"Some of these behavioral indicators may be constitutionally protected activities and should be supported by additional facts to justify increased suspicions," the bulletin noted. "Independently, each indicator may represent legitimate recreational or commercial activities; however, multiple indicators could suggest a heightened threat."

The post Feds Worried About Anarchists Gluing the Locks to a Government Facility appeared first on Reason.com.

As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.

This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.

In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")

The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they  found and seized more than 800 pills.

Payne was indicted for possession with intent to distribute fentanyl and cocaine.

In a motion to suppress, Payne's attorneys argued that by forcing him to unlock his phone, the officers "compelled a testimonial communication," violating both the Fourth Amendment's protection against unreasonable search and seizure and the Fifth Amendment's guarantee against self-incrimination. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.

The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.

Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.

Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.

But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified
for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."

From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.

And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.

But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.

When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.

Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.

The post Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone appeared first on Reason.com.

Since late 2020, Border Patrol along the United States–Mexico border has encountered over 6.9 million illegal crossers. A recent Pew Research survey reveals that 57 percent of respondents consider "dealing with immigration" a top policy priority this election year—just below "defending against terrorism" at 63 percent. 

Amid this backdrop, politicians and pundits have been quick to conflate these issues, holding numerous congressional hearings on the purported threat of terrorists entering the U.S. to commit acts of terror. This has given rise to a flood of rhetoric about said terrorists exploiting border chaos to harm Americans. 

Despite this fearmongering, the actual threat of foreign-born terrorism is relatively minor and manageable. New research from the Cato Institute indicates that since 1975, the annual likelihood of an American being murdered in a foreigner-committed terrorist attack is about one in 4.5 million.

Nonetheless, the public remains on edge. A serious car accident and explosion by a port of entry in upstate New York on November 22, 2023, was initially mistaken by many reporters and pundits as a terrorist attack. At the same time, patently fake videos on X (formerly Twitter) claiming that a terrorist had crossed the border circulated widely. 

Reports that illegal border crossers who are on the terrorist watch list have been apprehended seem to validate these fears. One person detained and released by Border Patrol in March 2023 was later discovered to be on the watch list. Similarly, Isnardo Garcia‐Amado was detained in Arizona in early 2022, released, and then promptly arrested after the government determined he was on the terrorist watchlist. 

Since late 2020, Border Patrol has encountered 357 foreigners on the terrorist watch list attempting to cross the southwest border illegally. But being on the watch list does not necessarily indicate an intent to commit terrorism on U.S. soil—which is what the public actually cares about.

Despite these apprehensions, there have been no convictions, nor have any of the watch-listed individuals been charged with actually planning a terrorist attack—an implausible result if they were all actually terrorists. The watch list seems to largely be leading to apprehensions of Colombians previously involved with groups like the Revolutionary Armed Forces of Colombia (FARC), which pose no direct threat to the United States. 

The government should be vigilant, but the public should moderate their fears regarding terrorists crossing the U.S. border. According to the Cato study, not a single American has been killed in a terrorist attack on U.S. soil carried out by an immigrant who entered illegally by crossing a land or water border. That's not to suggest such an event could never happen—it absolutely could. But so far, there's scant evidence to suggest terrorists are using this route or have any intention to do so. 

The actual risk posed by foreigners who enter in ways other than across the southern border varies considerably. For instance, the annual chance of being murdered in a terrorist attack committed by any illegal immigrant since 1975 was zero. Almost 98 percent of all victims of foreign-born terrorists were murdered in the 9/11 terror attacks—the deadliest in world history. The 9/11 hijackers entered as tourists and students, all with visas. 

This is not to trivialize the threat posed by foreign-born terrorists to the lives, liberty, and private property of Americans. Since 1975, there have been 3,046 people murdered by foreign-born terrorists on U.S. soil. Every one of those deaths is a tragedy, justifying some level of continued governmental vigilance and resources.

However, perspective is crucial. During the same period, almost 990,000 people were murdered in the U.S. through regular criminal homicides—about 323 times more than those killed by foreign-born terrorists.

If media and political discussions were proportional, they would spend about one minute addressing foreign-born terrorist threats for every 5.5 hours they spend on the threat of regular homicide. However, Republicans on the House Subcommittee on Immigration Integrity, Security, and Enforcement have held as many hearings on illegal immigrant terrorists along the border as on normal crime, despite there being no attacks to speak of. 

It's vital that Americans grasp the real extent of the terrorist threat to avoid the overblown fears that lead to poor policy decisions. Those misguided policies, informed by inaccurate assessments of the risk, have led U.S. politicians to allocate disproportionate resources to a relatively minor and manageable threat. A rational evaluation of the facts should allow us to breathe a cautious sigh of relief, recalibrating our focus toward more pressing domestic issues.

The post The Manufactured Crisis of Migrant Terrorists at the Border appeared first on Reason.com.

In England, Swansea Crown Court Judge Geraint Walters wanted to know why prosecutors dropped charges against photographer Dimitris Legakis on the eve of the trial. Legakis had been arrested for taking photos near a crime scene and charged with assaulting an emergency worker, obstructing or resisting a police officer, and using threatening or abusive words or behavior. A prosecutor said charges were dropped because the officer's original statement differed from a later one. But Walters said that after reading the record, he believed that Legakis was arrested because a police officer "took offence" to him taking photos. He said he believed prosecutors knew early on that "there was no evidential basis" to charge Legakis.

The post Brickbat: Freeze Frame appeared first on Reason.com.

Earlier this week, lawmakers on the House and Senate Appropriations Committees put forward six spending bills that would fund the government through the end of the year. In a press release, Republicans on the House committee bragged that the bills would "save taxpayers more than $200 billion over the next ten years"—a period of time over which the Congressional Budget Office predicts the national debt will expand by $20 trillion and eclipse the nation's gross domestic product.

Some of those savings come from cuts to federal law enforcement agencies, including the FBI and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Unfortunately, even those cuts are much more modest than they appear.

In their press release, House Republicans boasted that the appropriations package "utilizes the power of the purse to address the weaponization of the growing bureaucracy within the FBI and ATF." Specifically, they do this by "reversing [ATF's] anti-Second Amendment overreach…by significantly reducing its overall funding by $122 million, a 7% decrease" from 2023, as well as holding the FBI "accountable for targeting everyday Americans by reducing its overall operating budget by $654 million and cutting its construction account by 95%."

But these already-meager cuts don't involve very much actual cutting.

The FBI's salaries and expenses totaled over $10 billion in 2023, and it requested over $11 billion for 2024; the appropriations bill would grant $10.6 billion—a bit less than the FBI wanted but only about one-half percent less than last year's budget and certainly nothing approaching the 6 percent cut Republicans bragged about.

Republicans get around this with some tricky math: In a 2022 omnibus spending bill, the Bureau received $652 million toward the construction of a campus in Huntsville, Alabama. Republicans include the $652 million when touting a 6 percent cut, even though the money apportioned for salaries and expenses barely budged.

In fact, when Republicans bragged about "cut[ting] the FBI's construction account by $621.9 million"—for a whopping 95 percent decrease—that precipitous drop uses the one-time Huntsville cash as its starting point. Besides, the FBI only asked for a $61.9 million construction budget, which would have constituted a 90 percent decrease on its own.

Meanwhile, the ATF received $1.672 billion for salaries and expenses in 2023, while the appropriations bill would apportion $1.625 billion—a decrease of just 2.8 percent, not the 7 percent drop House Republicans claimed. That supposed 7 percent cut of $122 million comes from adding the $47 million cut in salaries and another $75 million cut from construction costs. The ATF did not request any construction money in its 2024 budget, so boasting that this a cut is laughable. Just like with the FBI, judging salaries and expenses in an apples-to-apples comparison yields a much more modest cut.

Any sort of fiscal discipline should be welcomed, of course. But it's not like Republicans are dedicated to pruning federal law enforcement agencies across the board.

"The Drug Enforcement Administration was an outlier in the bill, as it would receive a modest funding bump," writes Eric Katz at Government Executive. The bill would fund the DEA with $2.57 billion; when accounting for revenue from diversion control programs, Republicans say the department would receive "$42.4 million more" than it did in 2023.

The bill also directs not only the DEA but also the FBI to prioritize the policing of fentanyl. The FBI is directed "to allocate the maximum amount of resources" to target the "trafficking" of fentanyl and other opioids. There's no sign of any recognition that prohibition is exactly why fentanyl has proliferated in the first place and that harm reduction measures would be much safer and more effective than a law enforcement solution.

In fact, Republicans openly state in their press release that the cuts are not intended to save taxpayers money, noting that the bill "right-siz[es] agencies and programs and redirects that funding to combat fentanyl and counter the People's Republic of China."

Clearly, when the federal government consistently spends much more than it takes in, there is room to cut and an imperative to do so. It's unfortunate, then, that Republican lawmakers are bragging about plans to cut $200 billion over 10 years—1 percent of the anticipated federal debt accrued in that time—and it's even more disturbing to know that they're fudging the numbers to even get that much.

The post Republicans Use Fuzzy Math To Claim Large FBI, ATF Cuts in Budget Bill appeared first on Reason.com.

"I'm just floored and shocked," Rankin County, Mississippi, Sheriff Bryan Bailey said last August after five of his former deputies admitted to punching, kicking, tasing, torturing, and humiliating two men during an unlawful home invasion the previous January. "This is a perfect example of why people don't trust the police, and never in my life did I think it would happen in this department."

According to an investigation by The New York Times and Mississippi Today, however, Bailey had plenty of reasons to think something like this would happen in his department. Similar things had been happening in Rankin County "for nearly two decades," the Times reported in November.

"Narcotics detectives and patrol officers, some [of whom] called themselves the Goon Squad, barged into homes in the middle of the night, accusing people inside of dealing drugs," the paper said. "Then they handcuffed or held them at gunpoint and tortured them into confessing or providing information."

The Times and Mississippi Today corroborated "17 incidents involving 22 victims based on witness interviews, medical records, photographs of injuries and other documents." Those cases almost always involved "small drug busts," and the accusers "described similar tactics." Deputies "held people down while punching and kicking them or shocked them repeatedly with Tasers." They "shoved gun barrels into people's mouths." Three people "said deputies had waterboarded them until they thought they would suffocate," while "five said deputies had told them to move out of the county."

Although the federal charges that drew national attention to police brutality in Rankin County involved two black victims, Bailey's deputies were equal-opportunity abusers. They "appear to have targeted people based on suspected drug use, not race," the Times said. "Most of their accusers were white."

The deputies' pattern of abuse was reflected in complaints and lawsuits. "More than a dozen people have directly confronted Sheriff Bailey and his command staff about the deputies' brutal methods," the Times noted, and "at least five people have sued the department alleging beatings, chokings and other abuses by deputies associated with the Goon Squad."

Bailey said he had never heard of the Goon Squad and had no reason to think his deputies were abusing their authority. "Nobody's ever reported that to me," he said in August, and he "never, ever could've imagined" that the five convicted deputies, who included a man he said he knew "well" and had chosen as investigator of the year in 2013, were capable of "these horrendous crimes."

Bailey, who was reelected in November after running unopposed, rejected calls for his resignation. "I'm going to fix this," he promised. "I'm going to make everyone a whole lot more accountable."

The post Sheriff Who Presided Over Violent 'Goon Squad' Tries To Play Dumb appeared first on Reason.com.

Frozen embryos are "children" under Alabama law, the state's Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.

Frozen embryos are "unborn children" and "unborn children are 'children,'" Justice Jay Mitchell wrote in the court's main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.

The ruling seems to represent a turn toward judicial activism among members of Alabama's Supreme Court, which for a long time held that the law's text could not justify reading it to include "unborn children"—let alone frozen embryos.

It also portends a creeping Christian conservatism into court decisions, with Alabama Supreme Court Justice Tom Parker citing the Bible in his legal reasoning. In a concurring opinion, Parker justifies prohibitions on murder not by invoking classical liberal principles, like natural rights, but rather on the basis of "Man's creation in God's image" and the "you shall not murder" edict of the Sixth Commandment. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker writes.

Embryos Destroyed 

The decision stems from suits brought by former patients of the Center for Reproductive Medicine in Mobile, Alabama. These patients—couples James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—had used in vitro fertilization (IVF) to successfully have several children and still had some embryos stored in the Center's "cryogenic nursery." In December 2020, a patient at the Mobile Infirmary Medical Center (which the Center was a part of) entered the cryogenic nursery unauthorized and proceeded to remove and then drop some of their frozen embryos, destroying them.

The couples sued the fertility clinic and the hospital, citing Alabama's Wrongful Death of a Minor Act. This 1872 law lets parents sue for monetary damages "when the death of a minor child is caused by the wrongful act, omission, or negligence of any person."

The LePages and the Fondes brought a joint lawsuit, and a separate suit was filed by the Aysennes. Both suits alleged negligence and the Aysenne suit also alleged wantonness and breach-of-contract.

A trial court granted the Center's motion to dismiss all but the breach-of-contract claim. "The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child,'" the lower court held.

The three couples appealed, and their suits were consolidated for Supreme Court purposes.

No Exceptions for "Extrauterine Children" 

In a first-of-its-kind decision, the Alabama Supreme Court decided that frozen embryos are, indeed, children, rejecting the lower court's dismissal of the couples' wrongful death claims.

In the court's main opinion, Justice Jay Mitchell referred to frozen embryos in turn as "embryonic children" and "extrauterine children."

While the state's Wrongful Death of a Minor statute doesn't explicitly include "unborn children"—let alone "extrauterine children"—in its purview, "the ordinary meaning of 'child' includes children who have not yet been born," asserted Mitchell.

Furthermore, Alabama's Supreme Court "has long held that unborn children are 'children' for purposes of Alabama's that law," he wrote. The central question in this case, said Mitchell, is "whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed."

The couples in this case raised some truly ridiculous arguments for why such an "exception" shouldn't exist. They argued that a finding that the Wrongful Death of a Minor Act doesn't apply to unborn children (including frozen embryos) would mean partial-birth abortions are legal, since the baby would no longer be in utero but would also not be fully born. They also suggested it would OK murdering hypothetical toddlers entirely gestated in artificial wombs, since such children—no matter how old they got—would not technically have been born.

Amazingly, the majority lent credence to these crazy arguments. They are "weighty concerns," wrote Mitchell, albeit ones that needn't be resolved at this time since "neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage."

Dissent, Dissent, Dissent

Not all of the justices agreed with the majority's logic, and some offered quite scathing rebukes of it.

For instance, Justice Brady E. Mendheim—who concurred with the result of the main opinion but disagreed with some of its reasoning—doesn't think that it's so clear cut that "child" includes frozen embryos. For one thing, the wrongful death statute in question was written a century before IVF was even a scientific possibility. Furthermore, other parts of Alabama law, including the 2019 Human Life Protection Act, explicitly define an unborn child as a human being in utero.

Justice Will Sellers also rejected the idea that this is an easy and obvious call. "Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of 'person,' much less the definition of 'minor child,'" he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. "To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain," Sellers added.

Meanwhile, Justice Greg Cook—who dissented in full from the main opinion—rejects the idea that the 1872 law meant to include fetuses and zygotes in its definition of children, even when they are in utero.

The main opinion suggested that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb," notes Cook. But if you look at the full entry in the cited dictionary, it indicates the opposite, saying "the term is applied to infants from their birth."

Furthermore, interpreting the Wrongful Death Act to include unborn children is a recent phenomenon. "There is no doubt that the common law [in 1872] did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," wrote Cook. "In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed."

Thus, applying the wrongful death act to the loss of frozen embryos runs counter to the philosophy of originalism (the idea, common among libertarians and conservatives, that laws should be interpreted only as they were originally intended) and closer to the progressive idea of a malleable "living Constitution," suggests Cook. And he's not a fan. "It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it," Cook writes. If the legislature thinks the law needs expanding, it can do so.

Cook and Mendheim both object to characterizing the defense's position as seeking an "exception" for frozen embryos, because to declare it an exception to the state's protection of minor children assumes that embryos are minor children—a point that's far from a given. And they both pan the tacit acceptance of the out-there hypotheticals offered by the patients.

"The main opinion ignores the fact that it is not now—or for the foreseeable future—scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold," writes Mendheim. Should that become possible, "the answer to this futuristic hypothetical is simple," writes Cook: "the Legislature can address future technologies and can do so far better than this Court."

Bibles and Broad Reach

Pointing out that no other state has interpreted wrongful death laws this way—and a number have specifically rejected it—Cook suggests that being "the sole outlier" should "cause us to carefully reexamine our conclusions."

He concludes the decision could end IVF in Alabama, since "no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages."

This fear was echoed by the defendants in this case, who told the court a finding that the statute includes frozen embryos could make IVF prohibitively expensive.

Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, called the court's decision "terrifying" for people "who need in-vitro fertilization to build their families."

Chief Justice Parker's opinion suggests that their fears are not unfounded.

His opinion is chilling in the way is showcases the theocratic underpinnings on which he sees Alabama governance resting. Pointing to a 2018 amendment declaring it "the public policy of this state to recognize and support the sanctity of unborn life," he notes that the term sanctity can be defined as "holiness of life and character," godliness, and "the quality or state of being holy or sacred." He goes on to cite the King James Bible, noting that in Genesis man's creation was described as being "in the image of God." Its on these foundations that the legal treatment of frozen embryos should rest, he suggests.

According to Parker, this would not mean the end of IVF in Alabama. But it could mean changes that would seriously upend the IVF process.

In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women's bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman's body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.

Treating embryos as having the full legal rights of children could imperil all of these practices.

In Italy, "cryopreservation of embryos" is banned "except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation," writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.

"These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life," Parker concludes, writing that "certain changes to the IVF industry's current creation and handling of embryos in Alabama will result from this decision."

Even if the ruling doesn't end IVF in Alabama, it could pave the way for changes that make fertility treatments more difficult, time-consuming, expensive, and impractical.

Today's Image

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Should data scientists be in the business of fingering Americans for crimes they could commit, someday? Last month, a group of federal lawmakers asked the Department of Justice to stop funding such programs—at least until safeguards can be built in. It's just the latest battle over a controversial field of law enforcement that seeks to peer into the future to fight crime.

"We write to urge you to halt all Department of Justice (DOJ) grants for predictive policing systems until the DOJ can ensure that grant recipients will not use such systems in ways that have a discriminatory impact," reads a January letter to Attorney General Merrick Garland from U.S. Sen. Ron Wyden (D–Ore.) and Rep. Yvette Clarke (D–N.Y.), joined by Senators Jeff Merkley (D–Ore.), Alex Padilla, (D–Calif.), Peter Welch (D–Vt.), John Fetterman, (D–Penn.), and Ed Markey (D–Mass.). "Mounting evidence indicates that predictive policing technologies do not reduce crime. Instead, they worsen the unequal treatment of Americans of color by law enforcement."

The letter emphasizes worries about racial discrimination, but it also raises concerns about accuracy and civil liberties that, since day one, have dogged schemes to address crimes that haven't yet occurred.

Fingering Criminals-To-Be

Criminal justice theorists have long dreamed of stopping crimes before they happen. Crimes prevented mean no victims, costs, or perpetrators to punish. That's led to proposals for welfare and education programs intended to deter kids from becoming predators. It's also inspired "predictive policing" efforts that assume crunching numbers can tell you who is prone to prey on others. It's an intriguing idea, if you ignore the dangers of targeting people for what they might do in the future.

"For years, businesses have used data analysis to anticipate market conditions or industry trends and drive sales strategies," Beth Pearsall wrote in the Department of Justice's NIJ Journal in 2010. "Police can use a similar data analysis to help make their work more efficient. The idea is being called 'predictive policing,' and some in the field believe it has the potential to transform law enforcement by enabling police to anticipate and prevent crime instead of simply responding to it."

Interesting. But marketers targeting neighborhoods for home warranty pitches only annoy people when they're wrong; policing efforts have much higher stakes when they're flawed or malicious.

"The accuracy of predictive policing programs depends on the accuracy of the information they are fed," Reason's Ronald Bailey noted in 2012. "We should always keep in mind that any new technology that helps the police to better protect citizens can also be used to better oppress them."

Predictive Policing in (Bad) Action

People worried about the dangers of predictive policing often reference the 2002 movie Minority Report, in which a science-fiction take on the practice is abused to implicate innocent people. Recent years, though, have delivered real-life cautionary tales about misusing data science to torment people for crimes they haven't committed.

"First the Sheriff's Office generates lists of people it considers likely to break the law, based on arrest histories, unspecified intelligence and arbitrary decisions by police analysts," the Tampa Bay Times reported in 2020 of Pasco County, Florida's predictive policing program. "Then it sends deputies to find and interrogate anyone whose name appears, often without probable cause, a search warrant or evidence of a specific crime."

In practice, as a former deputy described the program's treatment of those it targeted: "Make their lives miserable until they move or sue."

Sue they did, with many plaintiffs represented by the Institute for Justice. Last year, with legal costs mounting, the sheriff's office claimed in court documents that it discontinued predictive policing efforts.

Garbage In, Garbage Out

A big problem with predictive policing is that it relies heavily on honesty and dispassion in people who create algorithms and enter data. As recent arguments over biases in internet search results and artificial intelligence reveal, the results that come out of a data-driven system are only as good as what goes in.

"One foundational problem with data-driven policing is that it treats information as neutral, ignoring how it can reflect over-policing and historical redlining," the Brennan Center for Justice's Ángel Díaz wrote in 2021. He added that tech vendors dealing with the NYPD's predictive policing program "proposed relying on data such as educational attainment, the availability of public transportation, and the number of health facilities and liquor licenses in a given neighborhood to predict areas of the city where crime was likely to occur."

Are those real predictors of criminal activity? Maybe. Or maybe they're excuses for making people's lives miserable until they move or sue, as happened in Pasco County.

Forecasts Fueled by the Feds

As with so many big ideas with scary potential, impetus for development and implementation comes from government funding and encouragement.

"The National Institute of Justice, the DOJ's research, development and evaluation arm, regularly provides seed money for grants and pilot projects to test out ideas like predictive policing," American University law professor Andrew Guthrie Ferguson commented earlier this month. "It was a National Institute of Justice grant that funded the first predictive policing conference in 2009 that launched the idea that past crime data could be run through an algorithm to predict future criminal risk."

Of course, it's not bad to seek innovation and to look for new tools that could make the public safer. But hopefully, those funding such research want it to make the world a better place, not worse. And when lawmakers asked the Justice Department in 2022 for some documentation on predictive policing, officials admitted they didn't really know how money was being spent, let alone its impact.

"It remains an unanswered [question], for example, to what degree such tools are, or ever have ever been, assessed for compliance with civil rights law," Gizmodo's Dell Cameron wrote at the time.

Hence the letter from Wyden and company. After years of haphazard funding and development, warnings from civil libertarians, and abuses by police, some lawmakers want the federal government to stop funding predictive policing efforts until due diligence is done and safeguards are in place.

You have to wonder if predictive policing programs predicted the field's own current troubles.

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Last week, a rookie Tennessee police officer died in the line of duty. But while the loss of the officer is tragic, evidence suggests that his death—as well as the death of a woman in his custody—was a result of his negligence.

Meigs County Deputy Robert "R. J." Leonard, who had just joined the sheriff's office fresh out of the academy in December, responded to a call of a disturbance Wednesday night. According to reports, a man and woman were fighting on a bridge, and Leonard arrested the woman around 10 p.m. According to Meigs County District Attorney Russell Johnson, the arrest was Leonard's first since joining the force.

After handcuffing the suspect—later identified as Tabitha Smith—and placing her in the back seat, Leonard radioed in that he was transporting her to jail. But on the way, according to Johnson, the deputy apparently sent his wife a text that read simply, "Arrest."

"His wife texted back and said, 'That's good' or 'That's great,'" said Sheriff Austin Garrett of nearby Hamilton County. But at that time, Leonard apparently drove the wrong way down a Blythe Ferry boat ramp and into the Tennessee River. At the same time Leonard texted his wife, dispatchers say they received a garbled radio message from him, with the only discernible word being "water."

The following day, a patrol vehicle was removed from the Tennessee River, from which the bodies of Leonard and Smith were later recovered.

While Leonard's death is tragic, leaving behind not only his wife but three children, all too little attention was paid to the woman who died, handcuffed, in his custody. Chief Deputy Brian Malone fought back tears as he announced Leonard's death, referring to Leonard as "part of our family," while only referring to Smith—herself a mother of two—as "the other victim."

The report filed on the events by Los Angeles' ABC7 features the headline, "Bodies of missing Tennessee deputy and woman who had been detained recovered, officials say." But that was changed from the original headline, "Tennessee deputy found dead after making first arrest, patrol vehicle recovered from river." While this reflects an earlier time when less information was available, that article still featured the detail that dispatchers had lost communication with Leonard right as he was texting his wife and that "the deputy, a native of New York, appeared to be texting and radioing while driving in a poorly lit area he was unfamiliar with."

Indeed, a report on Chattanooga's ABC9 noted that the crash "raises questions over safety on Blythe Ferry boat ramps," but the segment still shows that the road leading to the boat ramp in question featured three "rumble strips"—bumps in the road meant to alert drivers to upcoming danger—and three yellow signs warning that "road ends."

Unfortunately, Smith is just one of countless people to die in police custody. In 2014, Congress passed the Death in Custody Reporting Act, which requires the federal government to collect and analyze data on the number of inmates who die each year in state, local, or federal custody. But a report published last year by the Leadership Conference Education Fund and the Project on Government Oversight found that the government "has yet to collect reliable data, let alone produce the required study." Citing data from the Government Accountability Office, the report notes that "in 2021 alone, the government potentially undercounted deaths in custody by nearly 1,000 compared to other public data sources."

Leonard's crash was almost certainly an accident, driving down a dark road in an unfamiliar area at night. But preliminary evidence suggests a degree of negligence, both by texting while driving and failing to heed multiple posted signs. While Leonard's death was a tragedy, it is necessary to note that his negligence also caused the death of a woman in his custody.

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