Category Archives: privacy

An important first step — demand the immediate end of pre-textual investigatory stops

Published by:

This past week has renewed concerns about excessive use of force by police against Black Americans and minorities. Why is it that police seem so quick to escalate encounters with African American males?  Why is it that minorities distrust the police in ways that Caucasians don’t?  Are these problems just a reflection of a few “bad cops,” and not that of the vast majority who are dedicated to “protecting and serving” the communities they work in, or is there a deeper problem in policing?  Are all cops racist?  Is there institutional racism in within policing? All are important questions, but they all boil down to the fact that when police use strategies and tactics that disproportionately target minorities, and when they act differently in two identical scenarios with the sole exception of the race of the individual involved, it is discriminatory behavior. And it is a primary part of the lack of trust that exists between minority communities and the police today.

If there is a true desire to find solutions to the problems of lack of trust in policing, there is one action that each and every police department can take right now.  Immediately. And it is fairly simple. End the use of pre-textual traffic stops. Cease using the traffic code to conduct investigatory stops immediately. The benefits would be substantial.

What are investigatory pre-textual stops?  A pre-textual stop is a traffic stop used as a pretense or excuse to conduct a criminal investigation.  It is a tool that was developed by law enforcement in the 1980s as a way to prosecute the war on drugs. The setup is simple.  Identify a car that you, the officer, thinks looks suspicious, maybe there are young males in it, maybe it is the make and model of the vehicle, but regardless, you have a hunch that you want to investigate this vehicle.  So you look for the most minor of traffic offenses to create the pretext for a traffic stop.  I’m not talking about someone flying down the road 15 miles over the speed limit—that is a legitimate traffic safety issue.  I’m talking about driving with mud on a license plate, a broken license plate light, failure to use a turn signal properly.  Not failing to use a turn signal, but not using it 100 feet before a turn.

Other examples include weaving in the same lane of traffic, and driving down the left lane of the interstate for more than a half-mile, or driving with a parking permit hanging from the rearview window, among many others.  These are extremely minor violations of the traffic code that officers use as a pretext to establish probable cause to stop the vehicle. Once stopped, the officer has “seized” the driver and passengers of the vehicle.  He can question the driver, and all passengers.  Ask for identification, driver’s license, proof of insurance, registration, run the person’s names through the computer for active warrants.   If there is  reasonable suspicion that the driver is armed and dangerous, ask him or her to get out of the vehicle, and do a frisk, or pat-down of the outer clothing for weapons.  Scan the interior of the vehicle—doing a plain view search for weapons, open bottles, and contraband.

But there is more.  The officer is trained to ask provocative questions designed to put the driver on edge as a way to manipulate the him or her to consent to a search.

“Do you have anything on you that would cause me or my partner to blow up?”  Throwing him off guard, the driver quickly says no.  So, they the officer follows up with,

“No? Then you won’t mind if I do a quick search?”  This is psychological manipulation intended to get the citizen to waive his constitutional rights.

All of this is done independently of the “official” purpose for the stop, the issuance of a warning or citation for a traffic offense.  But the traffic violation isn’t really the goal. It is a means to conduct a criminal investigation, something he otherwise lacks reasonable suspicion or probable cause to do.  The officer does not possess the necessary reasonable articulable facts would that lead him to believe that the person is engaged in or about to engage in criminal behavior, so he probes, ask questions, and manipulates the citizen in the hope that he or she will consent to a search.  But in a traffic stop, there is NO reasonable suspicion of criminal wrong-doing, there is only a hunch, and a minor traffic violation, and often, the most trivial of violations.

I began by stating that these investigatory stops were originally designed to conduct the war on drugs.  In the past 20 years they have expanded, as police have institutionalized them into standard practice. The investigatory stop, police training manual author Charles Rensberg tells us, is a type of police traffic stop that “seeks to maximize the number of citizen contacts in vehicle stops during each shift and, through specific investigative techniques, to explore the full arrest potential of each.”  In the town where I live, the police department has an enforcement contact policy.  Each officer is expected to make three citizen contacts a shift, resulting in a citation, written warning, or ordinance violation. They uses investigatory stops all the time.

The use of the pre-textual stop by itself is disturbing. It is a violation of an individual’s constitutional rights to be free from unreasonable search and seizures.  But there is more to the problem.  The investigatory pretextual stop is NOT used systematically against all drivers.  Officers disproportionately use the tactics in contacts with minorities and young people.  My 18 year old son has endured two of these stops in the past 9 months.  One for a license plate light violation (the license plate light had blown out), and the other for failure to use a turn signal properly.  These stops are not just an annoyance, they are a humiliation.  Look at the text message I received from him during the most recent one.

Screen Shot 2016-07-10 at 2.21.45 PM
He knew to say no to a consent search, but also believed that it would end up bad if he didn’t comply.   “I didn’t do shit.”

This is not an extreme example.  It happens over and over again.  While my son is Caucasian, he is young.  The reality is that most adult Caucasian drivers rarely experience these stops. If they get stopped by the police it is for a legitimate traffic safety stop.  They were speeding 15 miles over the limit. They were driving at night with the headlights off.  Those are legitimate traffic offenses, in which we NEED police on patrol to keep the streets safe.  And if someone get a speeding ticket, they might not be happy about it, but they know they deserve it. They own it.  “Yeah, I got caught.”  But would they have the same perception if they were stopped again and again for turn signal violations, asked obnoxious questions, and searched?

Yet, this is exactly the reality that exists for minorities.  And minorities experience the humiliations that come from them, over and over again. It was because of racial profiling that several states developed state-wide legislatively mandated traffic stop data collection, in which officers are required by law to record information about every single traffic stop. The data is very clear that when we look at the stated reasons for traffic stops, that minorities, particularly African Americans, are subjected to these tactics far more frequently than Caucasians.

Now, police will make plenty of excuses, claiming that they don’t target minorities. They will insist that they aren’t racist. And to be fair they have been trained, over and over again, that this is good police work, and isn’t racist. They target vehicles that meet profiles, and it just happens that minorities fit many of these profiles.  There are plenty of excuses, and I’ll save them for another essay, but what is important is that Blacks experience pre-textual investigatory stops far more often than Caucasians do, and the end result is that has been a significant drop in trust of the police.  Blacks expect to be stopped.  They expect to be harassed by police. They expect to be treated as second-class citizens. They expect to be subjected to these humiliations.  White people don’t normally have these expectations, because with the exception of very young drivers, and even then only in some communities, they simply do not experience these types of stops.  The end result is that many Blacks don’t trust the police, and when there is a lack of trust, when there is a conflict, there is a much greater likelihood of that conflict escalating.  If I don’t trust you, I’m far more likely to be belligerent. And if the police officer detects “attitude,” he is far more likely to give it back. Over time, it creates a pre-disposition in the officer’s mind that when he stops a Black person, there is a great likelihood of conflict, and perhaps danger.

If we want to make immediate changes to begin the process of diffusing a small part of the tension on our streets, it is in the power of each and every police chief.   Instruct their officers to end the use of investigatory stops immediately.  Demand that pretextual stops be ended.  Make it crystal clear that this is not good policing, nor is it protecting and serving the community when you treat an entire class of drivers differently, often entirely because of their race.  Nor does it matter that the Supreme Court has said this behavior is permissible.  Just because it is legal does not mean it is right.

Define a list of legitimate traffic safety issues, and limit traffic stops to those purposes.  Stop the practice of using traffic stops to do what you couldn’t do if the person was on the street.  And while we are at it, stop the practice of making law enforcement a revenue generation process. Will this potentially diminish drug arrests?  Sure.    But if there is anything the last forty years should have taught us, it is that the war on drugs has been a monumental failure, and needs to end.

Will it solve the problem of excessive use of force? No, this is just one important step.  There is a fundamental need for more training in conflict management, and more training that focuses on the de-escalation of violence.  But ending pre textual investigatory stops will take the first essential step, to restore confidence.  Call your local police chief and sheriff and demand that they end the use of pre-textual investigatory stops now.  And if the police chief or sheriff won’t do it, then the legislatures of every state need to demand they do it.

Hot off the Presses: The Fourth Amendment in Flux

Published by:

Very excited to have received an advance copy of my new book, The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy just published by the University Press of Kansas.   UPK is one of the top publishers in political science, and seeing the book in print is very cool.      The book was the culmination of ten years of study of the Fourth Amendment, and two years of research trips to the Library of Congress.   The book should be available on Amazon on May 24th.

IMG_4541
Here is a basic description:

When the Founders penned the Fourth Amendment to the Constitution, it was not difficult to identify the “persons, houses, papers, and effects” they meant to protect; nor was it hard to understand what “unreasonable searches and seizures” were. The Fourth Amendment was intended to stop the use of general warrants and writs of assistance and applied primarily to protect the home. Flash forward to a time of digital devices, automobiles, the war on drugs, and a Supreme Court dominated by several decades of the jurisprudence of crime control, and the legal meaning of everything from “effects” to “seizures” has dramatically changed. Michael C. Gizzi and R. Craig Curtis make sense of these changes in The Fourth Amendment in Flux. The book traces the development and application of search and seizure law and jurisprudence over time, with particular emphasis on decisions of the Roberts Court. IMG_4537

Cell phones, GPS tracking devices, drones, wiretaps, the Patriot Act, constantly changing technology, and a political culture that emphasizes crime control create new challenges for Fourth Amendment interpretation and jurisprudence. This work exposes the tensions caused by attempts to apply pretechnological legal doctrine to modern problems of digital privacy. In their analysis of the Roberts Court’s relevant decisions, Gizzi and Curtis document the different approaches to the law that have been applied by the justices since the Obama nominees took their seats on the court. Their account, combining law, political science, and history, provides insight into the courts small group dynamics, and traces changes regarding search and seizure law in the opinions of one of its longest serving members, Justice Antonin Scalia.

“A significant contribution to the literature on Fourth Amendment jurisprudence that is written clearly and concisely. It should be read by legal scholars and students, and anyone with an interest in how law enforcement interests collide with the privacy rights of citizens.”

—Craig Hemmens, Chair and Professor, Department of Criminal Justice and Criminology, Washington State University

The Fourth Amendment in Fluxis an excellent book for political science, pre-law and criminal justice students.”

—Michael Palmiotto, Professor of Criminal Justice, Wichita State University

At a time when issues of privacy are increasingly complicated by technological advances, this overview and analysis of Fourth Amendment law is especially welcome—an invaluable resource as we address the enduring question of how to balance freedom against security in the context of the challenges of the twenty-first century.

Highlights from the Court’s decision in the Marriage Equality case

Published by:

While my first read of Kennedy’s opinion in Obergefell is certainly not detached, it is truly an enjoyable opinion to read. Eloquent in its defense of liberty, thorough in its review of precedents involving privacy and marriage, and makes a persuasive argument. Truly Justice Kennedy’s shining moment.

Some highlights:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as welearn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safehaven, and connection that express our common human- ity, civil marriage is an esteemedinstitution, and thedecision whether and whom to marry is among life’s momentous acts of self-definition….

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, suchas expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.”

I’ll leave the hypocrisy of the dissents for another post.

Religious freedom and compliance with the Court’s Same Sex Marriage Decision.

Published by:

Religious liberty does not mean your reliance on ancient texts taken out of context and translated using the state of the art tools of the early 17th century, permits you to deny full equal rights to others. There really is no religious freedom issue. Those opposed to same sex marriages do not have to enter into same sex marriages. Nor do their churches have to consecrate them. The Court spoke today, but the “religious freedom” lunacy will continue for some time.

And like after Brown v Board of Education, when southern states refused to implement the decision, we are already seeing plans to not comply in places like Texas and Alabama. In Texas, the Governor is issuing a statement prioritizing the “religious freedom” of Texans. In several counties in Alabama, their county clerks are no longer issuing any marriage licenses.

While it took a decade for the Civil Rights Act to finally force compliance, the Department of Justice has all the tools it needs today to nip this in the bud much more quickly today. The Court has said that marriage is a fundamental right. The DOJ can litigate to make sure that right is not deprived.

What to make of oral argument in the cell phone case

Published by:

Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

No Mr Chief Justice, all social media is NOT designed to be made public

Published by:

Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

Today’s tale of the absurd in the world of law enforcement reasoning

Published by:

Yesterday I provided a quote from the remarkable dissent from People v Weaver, a 1991 Court of Appeals decision involving a drug profile.   Today I’d like to share the reasoning (accepted by the Court’s majority, written by Judge Roger Wollman) as the basis of reasonable suspicion for a stop.

[An officer is waiting at the Kansas City Airport, watching people get off of a flight from Los Angeles at 6:45am].  As Weaver disembarked from Flight 650, he caught Officer Hick’s attention because he was a “roughly dressed” young black male who was carrying two bags and walking rapidly, almost running, down the concourse towards a door leading to a taxi stand.    Because Hicks was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area and that walking quickly towards a taxicab was a common characteristic of narcotics couriers at the airport, he became suspicious that Weaver was a drug trafficker.   –  People v Weaver, 966 F.2d 391 (1992) (Judge Roger Wollman).  

Wait, are you kidding me?  A “roughly dressed” young black man walking swiftly towards a taxi-cab after getting off a 3 or 4 hour flight is suspicious, since Los Angeles is a source city for narcotics in the midwest?  

I’ll say it again, are you kidding me?     This is a classic example of the way judges – particularly federal judges – accept wholeheartedly and uncritically – the rationales that law enforcement make up for profiling in the war on drugs.    While we can lay much blame for racial profiling on the police,  the Judicial branch deserves its share of blame for allowing such travesties of justice.   

%d bloggers like this: