It’s about the stupidest thing anyone could claim in defense of an unlawful detention and search, but Waterbury, CT police office Nicholas Andrzejewski did it anyway. He actually told a court (twice!) that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause.

Here’s how this started, taken from the Second Circuit Appeals Court’s rejection [PDF] of the officer’s attempt to walk away from this civil rights suit:

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped his car with the engine running on the side of a street in Waterbury, Connecticut. Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was frozen, and he stopped his car to fix it. The area “was dark and [known as] a high crime area well known for prostitution, drug transactions and other criminal activity.”

Ah. The old boilerplate. These assertions about dark, high crime, drug area, blah blah blah presumably autofill whenever a cop starts a sentence explaining their reasonable suspicions on their incident report. It’s so overused and so devoid of actual facts that it’s become a parody of itself. Here’s Scott Greenfield’s take on this part of the officer’s narrative:

Was there articulable suspicion that a crime was being committed because Souhaneh stopped his car on the street? It was dark, as nights tend to be. It was in a high crime area, as is every area in pretty much any city anywhere. And yet, the court saw no problem with Andrzejewski demanding his license, for doing exactly what drivers are instructed to do by pulling over rather than driving while their attention is focused elsewhere. 

Any reasonable person will read this and realize that this self-proclaimed reasonable cop’s narrative has at least a couple of strikes against it. And that’s well before Officer Andrzejewski decided to convert this truly unnecessary non-stop into a full blown invasion of the interior of Soukaneh’s car and a constantly escalating series of rights violations.

Within seconds after Soukaneh stopped his car, Officer Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s license. The interior vehicle light was on, so although the area was dark, Andrzejewski could see the activity inside of the car when he approached the window. As Soukaneh complied and handed his license over, he also provided Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also disclosed to Andrzejewski that, per the permit, he was in lawful possession of a pistol that was located in the driver’s side door compartment.

That this is being recounted in a court decision means the officer didn’t just take a look at the permit and wish Soukaneh a good evening. No, it went the other way. And it’s the sort of thing you need to shove directly in the eyeballs of every bootlicking person, police union rep, politician, and law enforcement official who claims police brutality only exists because people “don’t comply” and should just stop “breaking the law.” All laws were followed. Soukaneh did better than simply comply, he volunteered information. And this is what he got for being a model law-abiding citizen.

Following that exchange, Andrzejewski ordered Soukaneh out of the vehicle. According to Soukaneh’s description, Andrzejewski then violently “dragged [him] out of the car,” pushed him to the ground, yelled and screamed at him, handcuffed him, and pat-searched his person, recovering neither a weapon nor contraband. Andrzejewski then “shoved [Soukaneh] into the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and partially on the floor of the vehicle.” Soukaneh remained “in that position, facing down and unable to see, until another police officer came along several minutes later and helped him sit up.”

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk. After the search, Andrzejewski returned to the cruiser and kept Soukaneh handcuffed and detained in it for an additional half hour, during which time “a group of seven to ten police officers gathered.” Id. At one point, Andrzejewski began writing on his onboard computer and turned to a fellow officer who had arrived at the scene and asked, “What should I write him up for?” The other officer laughed and the sergeant, who had also since arrived, told Andrzejewski what to write.

Unsurprisingly, the lower court rejected the officer’s request for immunity, pointing out that while the initial encounter may have been justified, nothing that followed that (pulling Soukaneh from the car, handcuffing him, searching his vehicle, detaining him for another half-hour while trying to figure out what to cite him with) was supported by probable cause.

The Second Circuit comes to the same conclusion. Simply being made aware Soukaneh possessed an item millions of Americans also own legally is not probable cause for anything the officer did past that point.

On the facts before us, Andrzejewski does not provide an articulable reason why he, or any
other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a). To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

The same goes for the officer’s attempt to invoke qualified immunity by claiming no case on point would have made him aware he was not allowed to so thoroughly and lengthily violate this person’s rights. The Second Circuit says it’s not even sure why it’s spending so much time discussing this because it’s blatantly clear what happened here isn’t permissible under the Fourth Amendment.

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid.

That covers the forcible removal of Soukaneh from his car, his handcuffing, the search of his car, and his extended detention while the officer tried to come up with something to justify his actions after the fact.

It goes back to the lower court. But I imagine it will only be there briefly before Soukaneh is offered a settlement. Hopefully, that settlement will come hand-in-hand with the firing of Officer Andrzejewski. If this is the one time he got caught, just imagine what he’s gotten away with.

Here’s yet more anecdotal evidence demonstrating why we’re be better off routing mental health calls to mental health professionals, rather than to people who tend to respond to things they can’t immediately control with violence. The good news is more cities are experimenting with multiple options for 911 response. The better news is that those experiments have been successful.

The bad news is everything else. Most cities aren’t willing to do this. And because they’re unwilling to explore their options, more people suffering mental health crises are going to end up dead. That’s what happened to Roy Scott, a Las Vegas resident who was “helped” to death by Las Vegas police officers Kyle Smith and Theodore Huntsman.

Here’s another story that’s all too familiar here in the United States, as recounted at the opening of the Ninth Circuit Appeals Court decision [PDF]:

Early in the morning on March 3, 2019, Roy Scott called the police for help. But he did not get it. Las Vegas Metropolitan Police Department Officers Kyle Smith and Theodore Huntsman came to the scene. Scott was unarmed and in mental distress. Though he complied with the officers’ orders and was not suspected of a crime, Smith and Huntsman initiated physical contact, forced Scott to the ground, and used bodyweight force to restrain him. Shortly after, Scott lost consciousness and he was later pronounced dead.

The one-two punch of “called for help”/”but he did not get it” makes it clear the officers’ response to the situation was objectively terrible, at least in the Appeal Court’s eyes. The phrase “initiated physical contact” gives a hint of what’s to follow in the narrative: an unwarranted deployment of force against an unarmed person who was already experiencing distress long before these officers decided to end his life.

The district court nailed it on the first pass, denying qualified immunity to both officers. The officers appealed, but are greeted with more of the same at the next judiciary level.

The first two paragraphs recounting the violent incident in greater detail contain some pretty chilling facts. First, the evidence shows both officers clearly understood they were dealing with someone in mental distress, rather than some sort of dangerous criminal.

Scott was distressed and hallucinating when Officers Smith and Huntsman arrived at his apartment. After Smith and Huntsman knocked and identified themselves, Scott yelled to the officers to “break the door down” claiming that there were people inside his house. The officers did not break the door in because they did not hear anyone inside the apartment. Instead, they continued to knock and order Scott to come to the door. About two minutes after first knocking on the door, Smith told Huntsman, “this is a 421A for sure,” using the department code to indicate he believed Scott was mentally ill. Huntsman then called through the door: “Sir, have you been diagnosed with any mental diseases?” After Scott did not come to the door, Smith asked dispatch to call Scott back to ask him to come to the door, noting again that Scott appeared to be mentally ill. Smith then said to Huntsman: “I ain’t going in there. That’s too sketchy.” Huntsman agreed, “That dude’s wacky.” Peering into Scott’s window, Huntsman asked Smith if he could see the “crazed look in [Scott’s] eye.” They could not see anyone else in Scott’s apartment.

While it’s obviously possible for someone to both be in mental distress and pose a safety threat to others, the first fact that matters is that both officers affirmed (in their own body cam recordings) that they believed they were dealing with a mental health issues, rather than actual criminal activity.

The next paragraph contains a pretty damning fact — one that is a leading indicator that police violence, misconduct, or rights violations will be the most likely outcome of any encounter.

When Scott did not open the door, Smith called their sergeant, turning off his body worn camera. On Huntsman’s camera, Smith can be heard telling their sergeant that Scott sounds mentally ill. After ending the call, Smith told Huntsman that their sergeant said that “at the end of the day we can’t do anything if we don’t hear any reason to have an exigent circumstance.” Smith also explained that their Sergeant suggested they try again to get Scott to come to the door.

Never a good sign. Fortunately for Scott’s survivors, the other officer continued recording and captured the rest of Roy Scott’s killing. Scott finally answered the door carrying a metal pipe — one that he immediately dropped when the officers asked him to. They asked if he had any other weapons. Scott handed them a knife he had in pocket — handle-first — and said “I am sorry.” The officers pushed him up against a wall, shining a flashlight in his face. Scott asked to be put in the cop car, telling officers he had schizophrenia and that the light was bothering him. This request was ignored. The officers told Scott, “We are out here to help you.”

They didn’t.

At first, the officers held Scott’s arms at his sides while he was lying on his back. In this position, Scott screamed, struggled, and pled with the officers to leave him alone for over two minutes. The officers then eventually rolled Scott onto his stomach, repeatedly ordering Scott to “stop.” With Scott on his stomach and with his hands restrained behind his back, Huntsman put his bodyweight on Scott’s back and neck for about one to two minutes. At the same time Smith put his weight on Scott’s legs, restraining his lower body. Scott’s pleas turned increasingly incoherent and breathless as Huntsman applied his bodyweight. After handcuffing him, the officers attempted to roll Scott on his side, as he continued to incoherently cry out that he wanted to be left alone. When they rolled Scott over, his face was bloody from contact with the ground. Scott stopped yelling and thrashing around after a few minutes. Scott did not respond when Smith and Huntsman tried to wake or revive him. Shortly after, when the paramedics arrived, Scott was still unresponsive. Scott was pronounced dead after paramedics removed him from the scene. Plaintiffs’ expert found that Scott had died from restraint asphyxia.

From there, the fact-finding is simple, especially since it was recorded. While the officers presented their one-sided argument for qualified immunity, the appeals court shuts this attempt down. First of all, the facts are on the side of the non-moving party’s assertions at this point. Second, the body cam footage takes care of most of the questions of fact and what’s left to be decided should be done in front of a jury.

The officers’ attempt to portray Scott as a threat falls flattest, in terms of appellate arguments. The officers claimed Scott was a threat because he was carrying two weapons — a metal pipe and a knife. The court reminds the officers that one had been dropped and the other voluntarily handed to officers well before the officers decided to take Scott to the ground and restrain him to death.

The law was clearly established when the officers ended Scott’s life. And the precedent is almost directly on point.

The similarities between this case and Drummond are striking. Scott was not suspected of a crime. Instead, he was taken into custody because of his mental health. Though they were presented with an individual experiencing a mental health crisis and presenting no obvious danger to others, Smith and Huntsman crushed Scott’s back and neck to subdue him while handcuffing him. Scott also cried out with increasing distress and incoherence as the officers’ force escalated. Reasonable officers would have known that their force was not reasonable and that it created a serious risk of asphyxiating Scott.

When the law is clearly established and any facts that might help the officers push their version of the events still in dispute (not including those caught on camera, which are indisputable), qualified immunity is not an option. This will return to the lower court to be argued in front of a jury, assuming the city of Los Angeles doesn’t decide to settle first. No matter how this ends up being resolved, the city and the PD would be wise to look into alternative response options for mental health calls. It’s pretty clear police officers can’t — or won’t — handle these calls responsibly.

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.

Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was arrested on a trumped-up charge in retaliation for conduct protected by the First Amendment. So does Priscilla Villarreal, an independent journalist in Laredo, Texas. But in backing up that claim, Gonzalez, whose case will soon be decided by the Supreme Court, faces a problem that Villarreal does not: It is hard to say how often people engage in the conduct that police cited to justify her arrest, which involved putting a petition in her personal folder during a city council meeting. Villarreal, by contrast, was arrested for asking questions, something that journalists across the country do every day.

Last January, the U.S. Court of Appeals for the 5th Circuit nevertheless ruled, in an opinion by Judge Edith Jones that provoked four sharp dissents authored or joined by seven of her colleagues, that Villarreal's arrest was not "obviously unconstitutional." Thirteen briefs supporting Villarreal's petition for Supreme Court review—submitted by an ideologically diverse mix of groups and individuals, including organizations ranging from the Manhattan Institute to the Constitutional Accountability Center—underline the chilling implications of that astonishing conclusion.

"No right is more fundamental to the practice of journalism than the one the Fifth Circuit declined to recognize: the right to ask public officials for information," a brief submitted by the Reporters Committee for Freedom of the Press and 21 news organizations notes. They urge the Supreme Court to resolve the "chilling uncertainty" created by the appeals court's decision and "reaffirm the fundamental proposition that '[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information.'"

Villarreal, who is represented by the Foundation for Individual Rights and Expression, is asking the Supreme Court to uphold that principle, which her arrest blatantly violated. Her alleged crime, the Institute for Justice notes, consisted of "peacefully asking a police officer to corroborate information for two developing stories—a routine due-diligence and newsgathering practice used by journalists across the country." The two stories, which Villarreal posted on her locally popular Facebook page, involved a public suicide and a fatal car crash. Villarreal asked a Laredo police officer to confirm information about those incidents that Villarreal had received from other sources. By doing that, police and prosecutors claimed, Villarreal committed two felonies.

To justify those charges, police cited Section 39.06(c) of the Texas Penal Code, an obscure, rarely invoked law that applies to someone who "solicits or receives from a public servant" information that "has not been made public" with the "intent to obtain a benefit." The claim that Villarreal had violated that law was absurd for several reasons.

First, Section 39.06(c), which deals with "misuse of official information," is part of a chapter addressing "abuse of office." Its roots go back to a 1973 law that applied to "a public servant" who "acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by" information that "has not been made public" but to which "he has access in his official capacity." The statute also covered "a public servant" who "speculates or aids another to speculate on the basis of the information." Over the years, legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. But in light of its history and statutory context, Section 39.06(c) is clearly aimed at curtailing official corruption, not journalism.

Second, the Texas Penal Code defines "benefit" as "anything reasonably regarded as economic gain or advantage." What "economic gain or advantage" did Villarreal allegedly seek to obtain by asking a cop about a suicide and an accident? According to the arrest affidavits, it was an increase in her Facebook traffic. Jones' opinion, which drips with contempt for Villarreal's "journalistic style," notes that she "boasts over one hundred thousand Facebook followers and a well-cultivated reputation, which has engendered publicity in the New York Times, free meals 'from appreciative readers,' 'fees for promoting a local business,' and 'donations for new equipment necessary to her citizen journalism efforts.'" This sweeping definition of "benefit" would apply to any journalist who attracts readers and/or earns money by publishing information that previously "has not been made public."

Third, Section 39.06 defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act (TPIA). The arrest affidavits did not address the latter requirement at all. The 5th Circuit suggested the information that Villarreal obtained was covered by Section 552.108(a)(1) of the TPIA, which says government officials do not have to disclose information when doing so might compromise an ongoing investigation. While law enforcement agencies frequently invoke that vague provision, the information it covers is not "prohibited from disclosure." The TPIA explicitly gives agencies the discretion to release information even when they are not required to do so.

The MuckRock Foundation, which "has helped thousands of journalists, professionals, and ordinary citizens request, share, and understand public records," notes that Laredo's reading of Section 39.06(c) would lead to "the absurd result of imposing liability not only on those who seek 'confidential' information, but on those who request information that the government may, but need not, make public." Under that interpretation, anyone who asks for information that is deemed to be covered by a TPIA exception is committing a felony. As a brief from half a dozen journalists (including me) explains, Texas agencies that don't want to disclose information frequently seek support from the state attorney general's office, which in 2015 "issued over 7,000 rulings based on § 552.108(a)(1) alone." Yet the thousands of people whose TPIA requests are rejected each year have never been "arrested or prosecuted for their requests."

Laredo cops investigated Villarreal for months, so they had plenty of time to consider whether their interpretation of Section 39.06(c) was reasonable. So did the prosecutors who signed off on the case. Yet they did not even bother to present a plausible argument that Villarreal's conduct met the elements of this offense, and they were unfazed by the obvious First Amendment problems with criminalizing basic journalism. The charges were ultimately dismissed by a judge who deemed Section 39.06(c) unconstitutionally vague.

These cops and prosecutors—who, like Jones, were irked by Villarreal's "journalistic style"—were determined to pin charges on her without regard to statutory requirements or constitutional constraints. Yet according to the 5th Circuit, they cannot be held accountable for their vindictive lawlessness because it was not "clearly established" that arresting a journalist for practicing journalism was unconstitutional. Since they supposedly had no way of knowing that, they received qualified immunity.

The Supreme Court grafted qualified immunity onto 42 USC 1983, a federal law that authorizes people to sue government officials who violate their constitutional rights. The doctrine is supposedly designed to protect officials from unanticipated liability for "split-second" decisions in situations where they have little opportunity for careful reflection. That rationale, the Americans for Prosperity Foundation notes, does not apply to the sort of "intentional and slow-moving infringement of First Amendment rights" that Villarreal's case exemplifies. The protections offered by Section 1983, the brief says, "come to nothing where state actors may purposefully infringe First Amendment rights and then rely on prolix state law to trigger qualified immunity, claiming they did not know any better."

In this case, that claim is risible. "Villarreal's arrest obviously violated the Constitution," the Institute for Justice notes. "No reasonable government official would think the First Amendment permits criminalizing plain speech or routine journalism."

Contrary to what the 5th Circuit held, the Young America's Foundation and the Manhattan Institute say, it has been "clearly established for over 50 years" that "journalists and citizens" have a First Amendment right to "ask questions of their government officials." The Supreme Court has upheld that right in a line of decisions beginning with Branzburg v. Hayes in 1972. In that case, the Court rejected the idea that "news gathering does not qualify for First Amendment protection," without which "freedom of the press could be eviscerated."

Seven years later in Smith v. Daily Mail, the Court ruled that West Virginia violated the First Amendment when it prohibited newspapers from publishing the names of juvenile offenders without judicial permission. The justices held that the First Amendment protects "routine newspaper reporting techniques" and that the government may not "punish the truthful publication" of "lawfully obtained" information. As dissenting 5th Circuit Judge James E. Graves Jr. noted, the Supreme Court "has made clear that the First Amendment protects the publication of information obtained via 'routine newspaper reporting techniques'—which include asking for the name of a crime victim from government workers not clearly authorized to share such information."

These longstanding precedents are not the only reason the cops who arrested Villarreal should have known better. As the brief I joined points out, police officers across the country are accustomed to fielding questions from reporters, and department policies frequently encourage them to "work in cooperation with the media," as a general order to Washington, D.C., officers puts it. "Based on the TPIA, police department regulations, officer training on responding to press inquiries, and personal experience dealing with reporters," the brief says, "a reasonable officer would know that journalists are permitted to ask police officers the names of accident and suicide victims. A reasonable officer would know that reporters ask for such information every day."

You might think that Villarreal's arrest, which relied on a quirky reading of a little-used law, poses little realistic threat to journalists in Texas or elsewhere. But the briefs supporting Villarreal emphasize that police can always find an excuse to arrest journalists who annoy them. The brief I joined describes a couple of examples: the 2023 arrest of NewsNation reporter Evan Lambert for "trespassing" by covering a governor's press conference in Ohio and the 2020 arrest of radio reporter Josie Huang for "obstructing a peace officer" by using her phone to record an encounter between protesters and Los Angeles County sheriff's deputies.

"Retaliatory arrests have become an increasingly common occurrence," the Law Enforcement Action Partnership (LEAP) notes. "This trend is a byproduct of the ever-growing size of modern criminal codes." Thanks to those proliferating prohibitions, Justice Neil Gorsuch has observed, "almost anyone can be arrested for something." A cop "who may be inclined to punish a disfavored speaker—such as a journalist, as here—can therefore readily find a minor offense they committed and use that to justify an arrest," LEAP says. If police are emboldened to harass journalists this way, it warns, retaliatory arrests will become even more common.

That threat is especially acute for reporters who do not have the backing of a professional news outlet. Independent journalists Avi Adelman and Steven Monacelli, who "have been arrested or detained by police officers while reporting on law enforcement's public performance of their duties," note that increasingly strict police control of information may force a reporter to rely on the sort of "backchannel source" that Jones condemned Villarreal for using. "If using alternative sources exposes journalists to the risk of official retribution," Adelman and Monacelli warn, "journalists will become little more than conduits for government public relations copy."

Jones dismissed the idea that Villarreal is "a martyr for the sake of journalism." She seems to think independent reporters like Villarreal don't qualify as "real" journalists because they don't follow the rules that "mainstream, legitimate media outlets" do. In addition to criticizing Villarreal's use of a "backchannel source," a standard journalistic practice, Jones faulted her for "capitaliz[ing] on others' tragedies to propel her reputation and career," which is an apt, if cynical, description of what professional reporters routinely do. These criticisms make you wonder if Jones has ever watched the local news or noticed that "mainstream, legitimate media outlets" often carry stories that cite anonymous government sources.

Contrary to Jones' take, the critics who are urging the Supreme Court to overrule the decision she wrote include "mainstream, legitimate media outlets" such as ABC, NBC, The Atlantic, The Boston Globe, The New York Times, and The Washington Post. It is possible they know a little bit more about how journalism works than Jones does.

The post These Strange Bedfellows Want SCOTUS To Remind the 5th Circuit That Journalism Is Not a Crime 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.

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.

No matter how you might feel about constitutional rights or which ones are your favorites, the fact remains that it’s often people with the least amount of cultural cachet and/or the most to lose who make the best case law.

And so it is here, where we’re dealing with a sex offender who tried to follow both the letter and spirit of the law just to find himself arrested by the same people who defined the letter of the law for him.

However you may feel about sex offenders (and keep in mind this list includes teens who sexted other teens), there’s no denying they’re subject to some very extreme restrictions. These restrictions make it almost impossible for them to find housing. They certainly make it impossible for them to find anything but the worst forms of employment. And, in many states, paying for your crimes with jail time means nothing. Offenders (and not even those suspected to be prone to re-offending) are saddled with years — if not decades — of work/life restrictions that far surpass those handed to people convicted of violent crimes.

But, as long as offenders comply with these restrictions, they can continue whatever’s left of their lives in (very restricted) freedom. But the rules are complex, subject to change, and subject to broad interpretation by the government employees tasked with enforcing them.

This decision [PDF], issued by the Fourth Circuit Appeals Court, calls out cops for actions one usually expects from corrupt government employees doing the bidding of their totalitarian masters. The US is — at least until the next presidential election — still a democratic republic. The sorts of things detailed here simply should not be happening. (h/t Short Circuit)

North Carolina resident David Thurston sued after he was pretty much railroaded by local law enforcement officers who arrested him for (supposedly) violating his sex offender registration requirements. Thurston pleaded guilty to sexual assault of a minor charges in 1992. He served his time in Montana. He moved to North Carolina more than thirty years later, in 2015. He contacted Sheriff Kevin Frye and Deputy Lee Buchanan to make sure he complied with his new home’s offender registration requirements.

He complied with the state’s restrictions. A year after moving to North Carolina, Thurston contacted the sheriff to inform him he was planning to attend his nephew’s wedding in Spokane, Washington the following month. He asked for guidance on how to handle this temporary exit from the state, as well as what he needed to do to ensure compliance during this visit as well as after his return from the wedding.

Sheriff Frye was understanding, even if he wasn’t all that much help.

After they exchanged texts, Sheriff Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was “working on it.” All Thurston needed to do, Sheriff Frye explained, was email a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.

Having seemingly been given permission to attend this wedding and stay in Washington until he decided to return to North Carolina, Thurston left town. But his trip was immediately interrupted by Sheriff Frye, who now seemed a bit more concerned with keeping tabs on Thurston’s whereabouts. He asked Thurston for the address where he would be staying and to contact him after he arrived in Washington. Thurston immediately provided the address and promised to reach out after his arrival.

Once in Washington, Thurston contacted local law enforcement to register as a “visitor” in order to remain in compliance with his sex offender obligations. Thurston stayed in Spokane for the next month, during which he made a couple of trips to Seattle to visit a friend.

The sheriff and his office should have known Thurston was still in Washington. But they either forgot about the trip he had informed them about or simply didn’t care. Either way, the deputy charged with handling sex offenders began making things worse for Thurston, who was still in full compliance with the Sheriff’s demands and North Carolina law.

On September 9, while Thurston was away, the Sheriff’s Office mailed his verification form. Thurston’s sister, who lived with him in North Carolina, told him about the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never responded, so Thurston decided to “let it lie,” given their prior interactions.

The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began investigating Thurston. Three times after Thurston’s September 12 verification deadline, Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.

Roughly six weeks after his arrival in Spokane, the Spokane Sheriff’s Department contacted Thurston to inform him that (North Carolina) deputy Lee Buchanan was “looking for him.” Thurston called Deputy Buchanan, who told him his “absence” was “causing problems back home.” The deputy also (incorrectly) informed Thurston that it was “illegal” for him to be out of the state for more than 30 days. Then the deputy said this:

[I]n the same breath, [Deputy Buchanan] also said that he had spoken with Sheriff Frye and had decided that, as long as Thurston was back in North Carolina by October 19, “there would be no problem.”

Thurston returned on October 19th. It didn’t matter, at least not to Deputy Buchanan.

Even so, Deputy Buchanan discussed potential criminal liability with an assistant district attorney, who recommended that Deputy Buchanan pursue charges against Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate alleging three different criminal violations committed from September 19 to October 18: (1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification, and (3) willfully failing to report in person to the Sheriff’s Office.

And the trap was set. Thurston went to the Avery County Sheriff’s Office (completely unprompted by law enforcement visits or calls) to deliver his verification form. In return for this, he was arrested. The charges were later dropped, with the prosecutor explaining it away as “a misunderstanding with regard to how to comply with technical requirements.”

Well, the only “misunderstanding” was on the part of Deputy Buchanan, who managed to “misunderstand” direct communications with his sheriff so poorly (whether deliberately or not) that he had a man arrested for doing exactly what he had been instructed to do both by Sheriff Frye and Deputy Buchanan.

That dog won’t hunt, says the Fourth Circuit. It cites the lower court’s findings, which it upholds here:

Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that Thurston either purposefully violated the law or acted with some other improper purpose. But the district court’s order forecloses any argument that they believed this. Viewing the evidence in the light most favorable to Thurston, the district court accepted that both defendants “definitely knew that . . . Thurston was eager to comply with the law.” And the district court accepted that the officers knew that Sheriff Frye gave Thurston permission to travel and that Thurston followed every instruction the Sheriff’s Office gave him. In so concluding, the district court not only accepted the facts alleged about Thurston’s actions but also accepted that the officers had concluded, based on those actions, that Thurston was eager to comply with the law throughout his sojourn.

This sort of ruling means nothing if it’s not followed by a denial of qualified immunity. After all, officers are free to violate rights so long as they can credibly (lol) argue their clear violations of established rights were different enough from standing case law they could not have possibly known their actions were unconstitutional (even if it’s immediately obvious to everyone else). That doesn’t work here because (1) the rights violation is pretty fucking obvious and (2) the circuit has some precedent that aligns with the current case.

In this case, it’s the Fourth Circuit’s 2012 Merchant v. Bauer decision, which involved an officer seeking a search warrant to arrest someone for impersonating an officer. The court held then that the warrant was void and unconstitutional because the officer applying for it was in possession of knowledge that would have exonerated the suspect of the proposed criminal charge.

It’s the same thing here:

In other words, we held that knowledge of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So too here. The district court found that Sheriff Frye and Deputy Buchanan knew that Thurston was not acting willfully and thus could not satisfy each element of the relevant crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable officer could believe that an arrest in such circumstances was lawful.

If it’s not “reasonable,” it’s not constitutional. And since the standard is “reasonable officer” rather than “regular American,” reasonableness is the operative factor, even when most reasonable non-cops would clearly understand that arresting someone for following specific instructions issued by law enforcement officers is a violation of that person’s rights. There’s no new precedent here. But at least there’s another affirmation that trying to arrest someone for following the law is so far out of the range of “reasonable,” no officer can expect to be immunized for their blatant constitutional violations.

No matter how you might feel about constitutional rights or which ones are your favorites, the fact remains that it’s often people with the least amount of cultural cachet and/or the most to lose who make the best case law.

And so it is here, where we’re dealing with a sex offender who tried to follow both the letter and spirit of the law just to find himself arrested by the same people who defined the letter of the law for him.

However you may feel about sex offenders (and keep in mind this list includes teens who sexted other teens), there’s no denying they’re subject to some very extreme restrictions. These restrictions make it almost impossible for them to find housing. They certainly make it impossible for them to find anything but the worst forms of employment. And, in many states, paying for your crimes with jail time means nothing. Offenders (and not even those suspected to be prone to re-offending) are saddled with years — if not decades — of work/life restrictions that far surpass those handed to people convicted of violent crimes.

But, as long as offenders comply with these restrictions, they can continue whatever’s left of their lives in (very restricted) freedom. But the rules are complex, subject to change, and subject to broad interpretation by the government employees tasked with enforcing them.

This decision [PDF], issued by the Fourth Circuit Appeals Court, calls out cops for actions one usually expects from corrupt government employees doing the bidding of their totalitarian masters. The US is — at least until the next presidential election — still a democratic republic. The sorts of things detailed here simply should not be happening. (h/t Short Circuit)

North Carolina resident David Thurston sued after he was pretty much railroaded by local law enforcement officers who arrested him for (supposedly) violating his sex offender registration requirements. Thurston pleaded guilty to sexual assault of a minor charges in 1992. He served his time in Montana. He moved to North Carolina more than thirty years later, in 2015. He contacted Sheriff Kevin Frye and Deputy Lee Buchanan to make sure he complied with his new home’s offender registration requirements.

He complied with the state’s restrictions. A year after moving to North Carolina, Thurston contacted the sheriff to inform him he was planning to attend his nephew’s wedding in Spokane, Washington the following month. He asked for guidance on how to handle this temporary exit from the state, as well as what he needed to do to ensure compliance during this visit as well as after his return from the wedding.

Sheriff Frye was understanding, even if he wasn’t all that much help.

After they exchanged texts, Sheriff Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was “working on it.” All Thurston needed to do, Sheriff Frye explained, was email a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.

Having seemingly been given permission to attend this wedding and stay in Washington until he decided to return to North Carolina, Thurston left town. But his trip was immediately interrupted by Sheriff Frye, who now seemed a bit more concerned with keeping tabs on Thurston’s whereabouts. He asked Thurston for the address where he would be staying and to contact him after he arrived in Washington. Thurston immediately provided the address and promised to reach out after his arrival.

Once in Washington, Thurston contacted local law enforcement to register as a “visitor” in order to remain in compliance with his sex offender obligations. Thurston stayed in Spokane for the next month, during which he made a couple of trips to Seattle to visit a friend.

The sheriff and his office should have known Thurston was still in Washington. But they either forgot about the trip he had informed them about or simply didn’t care. Either way, the deputy charged with handling sex offenders began making things worse for Thurston, who was still in full compliance with the Sheriff’s demands and North Carolina law.

On September 9, while Thurston was away, the Sheriff’s Office mailed his verification form. Thurston’s sister, who lived with him in North Carolina, told him about the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never responded, so Thurston decided to “let it lie,” given their prior interactions.

The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began investigating Thurston. Three times after Thurston’s September 12 verification deadline, Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.

Roughly six weeks after his arrival in Spokane, the Spokane Sheriff’s Department contacted Thurston to inform him that (North Carolina) deputy Lee Buchanan was “looking for him.” Thurston called Deputy Buchanan, who told him his “absence” was “causing problems back home.” The deputy also (incorrectly) informed Thurston that it was “illegal” for him to be out of the state for more than 30 days. Then the deputy said this:

[I]n the same breath, [Deputy Buchanan] also said that he had spoken with Sheriff Frye and had decided that, as long as Thurston was back in North Carolina by October 19, “there would be no problem.”

Thurston returned on October 19th. It didn’t matter, at least not to Deputy Buchanan.

Even so, Deputy Buchanan discussed potential criminal liability with an assistant district attorney, who recommended that Deputy Buchanan pursue charges against Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate alleging three different criminal violations committed from September 19 to October 18: (1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification, and (3) willfully failing to report in person to the Sheriff’s Office.

And the trap was set. Thurston went to the Avery County Sheriff’s Office (completely unprompted by law enforcement visits or calls) to deliver his verification form. In return for this, he was arrested. The charges were later dropped, with the prosecutor explaining it away as “a misunderstanding with regard to how to comply with technical requirements.”

Well, the only “misunderstanding” was on the part of Deputy Buchanan, who managed to “misunderstand” direct communications with his sheriff so poorly (whether deliberately or not) that he had a man arrested for doing exactly what he had been instructed to do both by Sheriff Frye and Deputy Buchanan.

That dog won’t hunt, says the Fourth Circuit. It cites the lower court’s findings, which it upholds here:

Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that Thurston either purposefully violated the law or acted with some other improper purpose. But the district court’s order forecloses any argument that they believed this. Viewing the evidence in the light most favorable to Thurston, the district court accepted that both defendants “definitely knew that . . . Thurston was eager to comply with the law.” And the district court accepted that the officers knew that Sheriff Frye gave Thurston permission to travel and that Thurston followed every instruction the Sheriff’s Office gave him. In so concluding, the district court not only accepted the facts alleged about Thurston’s actions but also accepted that the officers had concluded, based on those actions, that Thurston was eager to comply with the law throughout his sojourn.

This sort of ruling means nothing if it’s not followed by a denial of qualified immunity. After all, officers are free to violate rights so long as they can credibly (lol) argue their clear violations of established rights were different enough from standing case law they could not have possibly known their actions were unconstitutional (even if it’s immediately obvious to everyone else). That doesn’t work here because (1) the rights violation is pretty fucking obvious and (2) the circuit has some precedent that aligns with the current case.

In this case, it’s the Fourth Circuit’s 2012 Merchant v. Bauer decision, which involved an officer seeking a search warrant to arrest someone for impersonating an officer. The court held then that the warrant was void and unconstitutional because the officer applying for it was in possession of knowledge that would have exonerated the suspect of the proposed criminal charge.

It’s the same thing here:

In other words, we held that knowledge of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So too here. The district court found that Sheriff Frye and Deputy Buchanan knew that Thurston was not acting willfully and thus could not satisfy each element of the relevant crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable officer could believe that an arrest in such circumstances was lawful.

If it’s not “reasonable,” it’s not constitutional. And since the standard is “reasonable officer” rather than “regular American,” reasonableness is the operative factor, even when most reasonable non-cops would clearly understand that arresting someone for following specific instructions issued by law enforcement officers is a violation of that person’s rights. There’s no new precedent here. But at least there’s another affirmation that trying to arrest someone for following the law is so far out of the range of “reasonable,” no officer can expect to be immunized for their blatant constitutional violations.

No matter how you might feel about constitutional rights or which ones are your favorites, the fact remains that it’s often people with the least amount of cultural cachet and/or the most to lose who make the best case law.

And so it is here, where we’re dealing with a sex offender who tried to follow both the letter and spirit of the law just to find himself arrested by the same people who defined the letter of the law for him.

However you may feel about sex offenders (and keep in mind this list includes teens who sexted other teens), there’s no denying they’re subject to some very extreme restrictions. These restrictions make it almost impossible for them to find housing. They certainly make it impossible for them to find anything but the worst forms of employment. And, in many states, paying for your crimes with jail time means nothing. Offenders (and not even those suspected to be prone to re-offending) are saddled with years — if not decades — of work/life restrictions that far surpass those handed to people convicted of violent crimes.

But, as long as offenders comply with these restrictions, they can continue whatever’s left of their lives in (very restricted) freedom. But the rules are complex, subject to change, and subject to broad interpretation by the government employees tasked with enforcing them.

This decision [PDF], issued by the Fourth Circuit Appeals Court, calls out cops for actions one usually expects from corrupt government employees doing the bidding of their totalitarian masters. The US is — at least until the next presidential election — still a democratic republic. The sorts of things detailed here simply should not be happening. (h/t Short Circuit)

North Carolina resident David Thurston sued after he was pretty much railroaded by local law enforcement officers who arrested him for (supposedly) violating his sex offender registration requirements. Thurston pleaded guilty to sexual assault of a minor charges in 1992. He served his time in Montana. He moved to North Carolina more than thirty years later, in 2015. He contacted Sheriff Kevin Frye and Deputy Lee Buchanan to make sure he complied with his new home’s offender registration requirements.

He complied with the state’s restrictions. A year after moving to North Carolina, Thurston contacted the sheriff to inform him he was planning to attend his nephew’s wedding in Spokane, Washington the following month. He asked for guidance on how to handle this temporary exit from the state, as well as what he needed to do to ensure compliance during this visit as well as after his return from the wedding.

Sheriff Frye was understanding, even if he wasn’t all that much help.

After they exchanged texts, Sheriff Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was “working on it.” All Thurston needed to do, Sheriff Frye explained, was email a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.

Having seemingly been given permission to attend this wedding and stay in Washington until he decided to return to North Carolina, Thurston left town. But his trip was immediately interrupted by Sheriff Frye, who now seemed a bit more concerned with keeping tabs on Thurston’s whereabouts. He asked Thurston for the address where he would be staying and to contact him after he arrived in Washington. Thurston immediately provided the address and promised to reach out after his arrival.

Once in Washington, Thurston contacted local law enforcement to register as a “visitor” in order to remain in compliance with his sex offender obligations. Thurston stayed in Spokane for the next month, during which he made a couple of trips to Seattle to visit a friend.

The sheriff and his office should have known Thurston was still in Washington. But they either forgot about the trip he had informed them about or simply didn’t care. Either way, the deputy charged with handling sex offenders began making things worse for Thurston, who was still in full compliance with the Sheriff’s demands and North Carolina law.

On September 9, while Thurston was away, the Sheriff’s Office mailed his verification form. Thurston’s sister, who lived with him in North Carolina, told him about the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never responded, so Thurston decided to “let it lie,” given their prior interactions.

The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began investigating Thurston. Three times after Thurston’s September 12 verification deadline, Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.

Roughly six weeks after his arrival in Spokane, the Spokane Sheriff’s Department contacted Thurston to inform him that (North Carolina) deputy Lee Buchanan was “looking for him.” Thurston called Deputy Buchanan, who told him his “absence” was “causing problems back home.” The deputy also (incorrectly) informed Thurston that it was “illegal” for him to be out of the state for more than 30 days. Then the deputy said this:

[I]n the same breath, [Deputy Buchanan] also said that he had spoken with Sheriff Frye and had decided that, as long as Thurston was back in North Carolina by October 19, “there would be no problem.”

Thurston returned on October 19th. It didn’t matter, at least not to Deputy Buchanan.

Even so, Deputy Buchanan discussed potential criminal liability with an assistant district attorney, who recommended that Deputy Buchanan pursue charges against Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate alleging three different criminal violations committed from September 19 to October 18: (1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification, and (3) willfully failing to report in person to the Sheriff’s Office.

And the trap was set. Thurston went to the Avery County Sheriff’s Office (completely unprompted by law enforcement visits or calls) to deliver his verification form. In return for this, he was arrested. The charges were later dropped, with the prosecutor explaining it away as “a misunderstanding with regard to how to comply with technical requirements.”

Well, the only “misunderstanding” was on the part of Deputy Buchanan, who managed to “misunderstand” direct communications with his sheriff so poorly (whether deliberately or not) that he had a man arrested for doing exactly what he had been instructed to do both by Sheriff Frye and Deputy Buchanan.

That dog won’t hunt, says the Fourth Circuit. It cites the lower court’s findings, which it upholds here:

Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that Thurston either purposefully violated the law or acted with some other improper purpose. But the district court’s order forecloses any argument that they believed this. Viewing the evidence in the light most favorable to Thurston, the district court accepted that both defendants “definitely knew that . . . Thurston was eager to comply with the law.” And the district court accepted that the officers knew that Sheriff Frye gave Thurston permission to travel and that Thurston followed every instruction the Sheriff’s Office gave him. In so concluding, the district court not only accepted the facts alleged about Thurston’s actions but also accepted that the officers had concluded, based on those actions, that Thurston was eager to comply with the law throughout his sojourn.

This sort of ruling means nothing if it’s not followed by a denial of qualified immunity. After all, officers are free to violate rights so long as they can credibly (lol) argue their clear violations of established rights were different enough from standing case law they could not have possibly known their actions were unconstitutional (even if it’s immediately obvious to everyone else). That doesn’t work here because (1) the rights violation is pretty fucking obvious and (2) the circuit has some precedent that aligns with the current case.

In this case, it’s the Fourth Circuit’s 2012 Merchant v. Bauer decision, which involved an officer seeking a search warrant to arrest someone for impersonating an officer. The court held then that the warrant was void and unconstitutional because the officer applying for it was in possession of knowledge that would have exonerated the suspect of the proposed criminal charge.

It’s the same thing here:

In other words, we held that knowledge of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So too here. The district court found that Sheriff Frye and Deputy Buchanan knew that Thurston was not acting willfully and thus could not satisfy each element of the relevant crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable officer could believe that an arrest in such circumstances was lawful.

If it’s not “reasonable,” it’s not constitutional. And since the standard is “reasonable officer” rather than “regular American,” reasonableness is the operative factor, even when most reasonable non-cops would clearly understand that arresting someone for following specific instructions issued by law enforcement officers is a violation of that person’s rights. There’s no new precedent here. But at least there’s another affirmation that trying to arrest someone for following the law is so far out of the range of “reasonable,” no officer can expect to be immunized for their blatant constitutional violations.

A 78-year-old woman whose home was mistakenly raided by a Denver SWAT team will now receive a nearly $3.8 million payout. The large sum comes as a result of a 2020 Colorado law that banned qualified immunity protections for police officers in the state, making civil rights lawsuits against police significantly more likely to succeed. 

On January 4th, 2022, Ruby Johnson, a retired postal worker, was sitting in her Denver home when she heard a police airhorn loudly commanding that she leave her home with her hands up. Johnson, who had recently showered and was only wearing a bathrobe, left her house to find a Denver SWAT team gathered outside her door.

The SWAT team had been sent to Johnson's home as part of an effort to recover a vehicle that had been stolen the previous day. According to Johnson's lawsuit, the stolen car had an iPhone inside, and the Find My app feature indicated that the phone was near Johnson's house. 

While the police officers had obtained a warrant to search Johnson's home, they did so using an affidavit that allegedly provided "false characterization" of how reliable the Find My app is, overstating how sure the police could be that the iPhone—and the truck—would be at Johnson's house.

According to Johnson's lawsuit, after receiving this warrant, the SWAT team aggressively searched her home, causing considerable damage to her belongings. Making matters worse, even though Johnson gave police her garage door opener and told them how to enter the garage's front door, police used a battering ram to enter the garage, destroying the door and door frame. Ultimately, the SWAT team found no sign of the truck or any other criminal activity. The officers left and later told Johnson's children that the department wouldn't pay Johnson for the considerable damage caused to her home.

Johnson filed a lawsuit with the American Civil Liberties Union (ACLU) of Colorado in December 2022, alleging that the search was unlawful under the Colorado Constitution.

"Officers combed through Ms. Johnson's home for hours and found no evidence of anything even remotely connected to any criminal activity. The illegal search succeeded only in leaving the innocent Ms. Johnson traumatized," the complaint states. "Ms. Johnson's privacy, sense of safety, and peace in her home have been shattered since her house became the scene of a militarized criminal investigation. This illegal search has destroyed Ms. Johnson's sense of safety and security in the home that has been her castle for forty years."

On Monday, the ACLU of Colorado announced that Johnson had been awarded $3.76 million, including $1.26 million in compensatory damages and $2.5 million in punitive damages. In a press release, the ACLU largely credited the passage of a 2020 law that revoked police qualified immunity protections—which typically prevent law enforcement from being sued for Constitutional violations—for the victory.

"This is a small step toward justice for Ms. Johnson, but it is a critical case under our state's Constitution, for the first time affirming that police can be held accountable for invading someone's home without probable cause," Tim Macdonald, ACLU of Colorado Legal Director said on Monday. "The ACLU worked hard in the summer of 2020, with lots of other stakeholders, to create a right to sue for violations of the state Constitution."

The post 78-Year-Old Grandmother Awarded $3.8 Million After Illegal SWAT Raid appeared first on Reason.com.

Very rarely do you see anyone prevail in court when any form of forfeiture is in play. The forfeiture litigation deck is firmly stacked in favor of the government, which rarely needs anything approaching actual proof to walk off with someone’s property.

It’s even more rare to see someone awarded damages in a civil lawsuit against law enforcement officers. In most cases, qualified immunity terminates the lawsuit. If qualified immunity is not awarded, agencies and governments are often swift to offer plaintiffs no-fault settlements that allow the accused to walk away from the lawsuit without having to admit any wrongdoing, much less pay out of their own pockets for their misdeeds.

This case contains both rarities. Not only does it involve regular people securing some sort of justice for their violated rights, but the underlying set of rights violations included officers walking out the home they’d raided without a warrant with all the valuables they could get their hands on, including $4,000 in cash.

Here’s how the raid went down, as recounted by C.J. Ciaramella for Reason back in 2019.

On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.

Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.

Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.

The supposed odor of marijuana eventually led the deputies to a small marijuana plant, a few scattered leaves, and a single prescription pill that was not located in its bottle. The home invasion also led deputies to other stuff they wanted, but had no legitimate reason to take. They took the cash they found in the house, a wedding ring, some guns, a coin collection, and a couple guitars.

To the Sheriff’s Office, the $4,000 probably seemed insignificant. But it was pretty much all they had. They were in the middle of refinancing an agricultural loan to ensure their chicken farm remained solvent. Thanks to being forced to spend most of two days in jail, they missed their refinancing deadline. That ultimately resulted in the couple losing their house. They were residing in an insulated shed by the time the court took up their lawsuit.

More than four years after the raid, the couple has finally secured some form of justice. The $1 million in damages awarded by the jury will likely be appealed by the sheriff’s department, but for now, that’s what a jury has said the couple is entitled to.

The judge overseeing the case issued an order [PDF] along with the directed verdict, stating that the “rarity” of a directed verdict in a civil rights lawsuit necessitates some explanation.

The explanation reveals just how much of a blatant violation of rights this raid was. Deputy Kevin Walker had no excuse for his actions.

During trial, Judge Amy Newsome testified that she never issued a telephonic warrant to Defendant Walker, or to the drug task force, on January 31, 2018, for a search of the Plaintiffs’ home. She also testified that she did not tell Walker that he had a warrant. In addition, Defendant Walker testified that Judge Newsome did not tell him that he had a telephonic search warrant, although she did tell him that he probably had enough for a warrant.

He also acknowledged that the requirements for a telephonic warrant were not satisfied, that he did not have a search warrant, and that it was a warrantless search. Given this undisputed testimony, even when considered in the light most favorable to Defendant Walker, the search of the Plaintiffs’ home was without a warrant, even a defective one, and therefore violated the Fourth Amendment. No reasonable jury could have concluded otherwise as there was no question of fact on this issue.

Yeah. That’s inexcusable. And yet, Walker had an excuse: good faith. He attempted to avail himself of the good faith warrant exception. But, as the judge points out, good faith relies on someone believing a valid warrant has actually been issued, not just thinking they could probably obtain one at some point in the future. On top of that, the good faith exception invoked by the deputy only applies in criminal trials, not civil trials. Even if it did apply in this content, Walker would still lose. (Emphasis in the original.)

But even if the good faith exception to the exclusionary rule can apply in the civil context, the good faith exception still would not apply in the circumstances of this case. First, per Judge Newsome and Defendant Walker, there was no warrant, telephonic or written, and thus there was nothing upon which Walker could rely in good faith. In other words, because Defendant Walker knew that he did not have a warrant at the time of the incident, the good faith exception does not apply.

And the cases Walker cites are inapplicable to the facts here: Taylor, Moorehead, Henderson,
and Ganzer all involved situations where written warrants were issued, not situations where a warrant was never issued in the first place. And secondly, as a matter of law, given the undisputed facts concerning the non-existence of a warrant, it was objectively unreasonable for an experienced law enforcement officer to believe that he could search an occupied home when no warrant existed, when no judge told him that he had a warrant, when he was merely told that he had enough for a warrant, and when none of the formalities or requirements associated with a telephonic or written warrant were followed.

As the court notes in this order, it fully expects Walker to raise the other form of good faith in a future motion, indicating that while a jury has already said the couple is owed $1 million in damages, the court has yet to issue an order blessing that payout. Hopefully, if nothing else, this utter failure to salvage a blatantly unconstitutional search will urge Walker’s employers to cut a check, rather than continue to embarrass itself in court.