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On May 28, protestors in Minneapolis demonstrated late into the night against the killing of George Floyd and police brutality. The next day, on Twitter, Jason Paladino of the Project on Government Oversight noticed a Customs and Border Protection (CBP) drone was flying over the city. According to open-source data, as reported by Gizmodo, the drone took off from an Air Force base in Grand Forks, North Dakota, at around 10:10 a.m. At 11:47 a.m., the drone reached Minneapolis, where it entered a hexagon-shaped holding pattern at 20,000 feet over the city. About an hour and a half later, around 1:15 p.m., it began its return to Grand Forks.

It is not entirely clear what the dronesuspected to be a Predator Bwas doing over the city. After Motherboard initially broke the story, CBP said in a statement that the drone was preparing to provide live video to aid in situational awareness at the request of our federal law enforcement partners in Minneapolis. Once the drone arrived in Minneapolis, an agency that CPB declined to name determined that the aircraft was no longer needed for operational awareness and departed back to Grand Forks. According to subsequent reporting from the Minneapolis Star Tribune, both the FBI and the Minnesota National Guard denied requesting the drone.

The deployment of the drone raises a host of important legal and policy questions. In a letter to the Department of Homeland Security, Democratic members of the House of Representatives expressed grave concern over the drones use and demanded information regarding recent Homeland Security surveillance operations. And in another letter to leaders of CBP, the Drug Enforcement Agency, the FBI and the National Guard Bureau, Democratic lawmakers noted that there had been reports of Predator drone use in Detroit and San Antonio during recent protests, among other types of surveillance technologies. But a potentially important legal question remains unexamined: If the CBP commenced a surveillance operation, would that have violated the Fourth Amendment?

The answer to that question depends on a number of details about the purpose, duration and technological capabilities of the operation. The longer and more precise the surveillance, the more constitutionally suspect it would be. Nonetheless, assuming that the government were to deploy the drone over a multiple-day periodtwo weeks since George Floyd was killed, protests continue across the countryit is possible to draw some preliminary conclusions with respect to the Fourth Amendment.

Leaders of a Beautiful Struggle v. Baltimore Police Department

The most logical starting point for a Fourth Amendment analysis is the recent federal district court decision in Leaders of a Beautiful Struggle v. Baltimore Police Department. In that case, the court denied plaintiffs request for a preliminary injunction to prevent the Baltimore Police Department from implementing an aerial surveillance operation called the Aerial Investigation Research (AIR) pilot program. The American Civil Liberties Union (ACLU), which represents the plaintiffs, has appealed that decision to the U.S. Court of Appeals for the Fourth Circuitand the court has agreed to expedite the proceedings.

According to the district courts opinion, the AIR program consists of flying three aircraftoperated by a private contractorover Baltimore for a period of six months. Each plane flies approximately 12 hours a day, collectively covering about 90 percent of the [c]ity and capturing about 32 square miles of the city per image every second. The planes cannot provide real-time surveillance and they are incapable of operating at night or in bad weather. What they do provide are images in which 1 pixel represents a single person, meaning that an individuals characteristics are not observable in the images. Those images are then stored for up to 45 days and can be accessed only as part of a criminal investigation for certain crimes, according to an agreement between the police department and the private contractor that maintains the database.

The district court analyzed the Fourth Amendment claim in three parts and determined that the AIR program was not a Fourth Amendment search. First, the court looked to three older precedentsDow Chemical Co. v. United States (1986), California v. Ciraolo (1986) and Florida v. Riley (1989)in which the Supreme Court rejected Fourth Amendment challenges to aerial surveillance that the district court found to be far more intrusive than the AIR program. Second, the district court surveyed a number of appellate court decisions that upheld the warrantless use of to observe activities within a given radius and concluded that those cameras captured more private activities than the AIR program. (The court did not engage, however, with the reasoning in a recent district court decisionthat is currently before the First Circuitthat found that extended use of such cameras requires a warrant.)

Third, the district court applied the Supreme Courts recent decision in Carpenter v. United States (2018), which extended Fourth Amendment protection to seven days worth of cellphone location data. (The courts discussion of Carpenter is the most important part of its analysis since all the cases cited in the first two parts of the opinion were decided pre-Carpenter.) Plaintiffs core argument was that, like the cellphone location data in Carpenter, the images collected by the AIR program also allowed law enforcement to track a specific persons movements over multiple days.

But the court distinguished the AIR program from Carpenter. The district court determined that cellphone location information offers a far more intrusive, efficient, and reliable method of tracking a persons whereabouts than the AIR pilot program. In particular, the court noted that while a cellphone generally relays its location data several times a minute, the AIR programs inability to fly at night and in bad weather creates gaps in the data [that] will prohibit the tracking of individuals over the course of multiple days. The court also relied on the fact that the Carpenter court noted that it is remarkably easy for law enforcement to track a persons location with access to their cellphone data. By contrast, it was significant in the courts view that tracking using the AIR images requires time-intensive analysesabout 1 hour of labor to track two hours of a vehicles movements. And, because the AIR program cannot track people once they are inside their homes, the court found thatunlike cellphone datathe AIR program cannot expose the privacies of life.

Still, the district courts opinion will not be the last word on the issueCarpenters doctrinal implications are far from settled. On appeal, among other things, the ACLU argues that the district court incorrectly applied Carpenter. In its view, the bad weather and gaps do not defeat the Fourth Amendment claim. The ACLU notes that the Carpenter court upheld a Fourth Amendment claim even though there are gaps in cellphone location data such as when people turn off their cell phones, leave them at home, or travel out of their service providers coverage area. And the ACLU emphasized that [f]or most Baltimoreans, who return home at night and leave in the morning from the same place, any of the AIR programs gaps will hardly provide meaningful protection against day-after-day tracking. Accordingly, the ACLU contends that rather than analyzing the AIR program in discrete 12-hour intervals, the Fourth Amendment claim should be construed as the daily collection of Plaintiffs movements, down to the yard, for 180 days, retained for 45 days at a time. Lastly, the ACLU sharply contests the relevance of the district courts reliance on the fact that additional work is required to track a specific person or vehicles location.

Drone Surveillance and the Fourth Amendment

At the outset, whether the drone provides law enforcement with retrospective surveillance capabilitiesin addition to the real-time feed that the CBPs statement referencedwould be crucial to the Fourth Amendment analysis. This is important because the Carpenter court placed repeated emphasis on the retrospective quality of the data since it gives law enforcement access to a category of information otherwise unknowable. While it remains an open question to what extent courts will extend Carpenter to real-time surveillanceMassachusettss supreme court already has done so, albeit in a context with some meaningful distinctions from aerial surveillanceit is clear that there would be a stronger Fourth Amendment claim if the footage was retrospectively available to law enforcement than if it was provided only in real time. Still, to the extent that real-time surveillance allowed for the tracking of specific people over an extended period of time, it could trigger Carpenters protections for the record of [a persons] physical movements.

If the drone did possess retrospective capabilities, even under the approach taken by the Leaders of a Beautiful Struggle district court, the surveillance would likely constitute a Fourth Amendment search. There are at least two constitutionally significant differences between the flight of the Predator B above Minneapolis and the AIR program that point toward that conclusion.

First, while there is limited public information about the zoom capacity of the Predator Bs camera, it seems likely that it is more precise than the AIR programs 1 pixel per person. A video on the General Atomics website shows the drones capabilitiesand it is possible that at a lower altitude, the drone could produce an even clearer picture. (It is also known that CBP is seeking facial recognition-equipped drones.) And as the Project on Government Oversight has noted, manufacturers marketing drones far less sophisticated than the Predator B highlight their [drones] ability to pick individuals out of a public gathering. Second, it is well established that the Predator B has night-vision and infrared capabilities. According to a 2009 Popular Mechanics story, even in the dark, [t]he video image is so sharp that even from an altitude of more than 3 miles, [the operator] can make out that ... men are carrying large, heavy backpacks. This means thatcompared to the AIR programthere would be even fewer gaps in surveillance, thereby producing a comprehensive portrait of a persons whereabouts.

The next step in assessing the lawfulness of the search would be to determine whether or not it meets the Fourth Amendments reasonableness requirement. (A reasonable Fourth Amendment search would be lawful.) A courts reasonableness inquiry would be highly fact-specific and is difficult to predict. In Carpenter, the Supreme Court affirmed that warrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. And the ACLUs Fourth Circuit brief contends that warrantless, nonparticularized aerial surveillance resembles the form of search in a general warrant, which is forbidden under the Fourth Amendment. But the Carpenter court also left open the possibility that even warrantless surveillance might be permissible if law enforcement is confronted with an urgent situation.

***

The current protests were not the firstand certainly will not be the lastinstance in which the government employs a military-grade drone for domestic law enforcement purposes. According to Freedom of Information Act documents obtained by the Electronic Frontier Foundation, Predator drones were used in dozens of state and federal law enforcement operations between 2010 and 2012. And while advocates have long argued that drone surveillance violates the Fourth Amendment, they now have a new weapon of their own: the Supreme Courts decision in Carpenter. How far Carpenter will extend, though, remains to be seen.

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Did a Government Drone Flight Over a Protest Violate the Fourth Amendment? - Lawfare

By Lara Yeretsian

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

Law360 (June 8, 2020, 2:14 PM EDT) --

Contact tracing works by identifying where people who have tested positive for the virus have traveled and with whom they've interacted.

The intent of these programs, which have shown positive results in other countries, is to alter the trajectory of the pandemic. It's an unobjectionable undertaking, but it could end up becoming a criminal justice nightmare.

Contact tracing requires that the information of more than one person is collected. A subject who has opted to participate in the program allows his or her geolocation and proximity data to be tracked. That person's friends, colleagues and acquaintances may now show up on the government's radar screen, whether they've agreed to be tracked or not, and without any forewarning.

Without probable cause for a search warrant, law enforcement could, absent legal restrictions, use geolocation data to build a case for probable cause against a criminal suspect. Proximity data could provide police with new tools for tracking cohorts against whom there isn't reasonable suspicion, simply by using other parties' location information.

It's not unlike DNA that has been submitted to a genealogical site for purposes of uncovering one's ancestry. The person submitting a DNA sample does not agree to its use by law enforcement to track down and arrest relatives who may have committed unsolved crimes. The implications of extending the same legal sophistry to law enforcement's use of COVID-19 data to go after criminal suspects should be troubling to everybody who cares about our system of justice.

At the end of April, U.S. Sens. Roger Wicker, R-Miss., John Thune, R-S.D., Jerry Moran, R-Kan., and Marsha Blackburn, R-Tenn., introduced the COVID-19 Consumer Data Protection Act, whose intent is to "provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data."

The act would require covered companies to obtain express consent from individuals to collect, process or transfer their personal health, geolocation or proximity information for the purposes of tracking the spread of COVID-19. Companies would have to tell consumers how their data will be handled, to whom it will be transferred, and how long it will be retained. They would also be required to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Covered companies those subject to Federal Trade Commission jurisdiction, as well as not-for-profit entities and common carriers would be obligated to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and for how long it will be retained.

They would be required to publish transparency reports every 30 days describing their data collection activities related to COVID-19 and to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Companies would also be required to have an effective opt-out mechanism for individuals to revoke their consent for the collection, processing and transfer of personal information, and they would need to adhere to prescribed data minimization and data security requirements for all personally identifiable information they collected.

Information that is aggregated, deidentified or publicly available is not considered covered data under the proposed law. Significantly, the bill would provide no private right of action, authorizing state attorneys general to enforce its provisions.

The act defines "precise location data" and "proximity data" as a person's past or present physical location. There are important public safety benefits to tracking the location of individuals who have received a positive COVID-19 diagnosis, as well as the identity and location of others with whom they've come into contact.

It's critical to understand who has been exposed to a COVID-19 carrier so that those people can be notified and can take immediate precautionary steps to prevent further exposures.

At the same time, however, the specter of Big Brother arises when we talk about tracking people's exact whereabouts. Without clear legal boundaries, geolocation and proximity data could become weapons in law enforcement's arsenal, used to track down people suspected of crimes in direct contravention of more than two centuries of protections against unreasonable search and seizure. Once the data is collected, how do we ensure that it isn't used for a different purpose?

The text of the CCDPA doesn't answer the question. Section 3(a) provides as follows:

During the COVID19 public health emergency, it shall be unlawful for a covered entity to collect, process, or transfer the covered data of an individual for a purpose described in subsection (b) unless. ... (3) the covered entity publicly commits not to collect, process, or transfer such covered data for a purpose other than the purpose described in subsection (b) to which the individual consented unless (A) such collection, processing, or transfer is necessary to comply with the provisions of this Act or other applicable laws. (emphasis added)

Notwithstanding subsection (a), a covered entity may collect, process, or transfer the covered data of an individual or group of individuals for a purpose described in subsection (b) during the COVID19 public health emergency without obtaining the affirmative express consent of the individual if such collection, processing, or transfer is necessary to allow the covered entity to comply with a Federal, State, or local legal obligation.

Relying on attorneys general to monitor and assess penalties for alternative uses of the information especially to give a leg up to law enforcement in prosecuting suspected criminals is unrealistic.

Location data could give police another mechanism for pursuing suspects, despite laws against unreasonable search and seizure. Just as with other violations of Fourth Amendment rights, evidence gathered as a result of geolocation or proximity tracing must be thrown out of court as unlawfully obtained.

Unless a suspect's relationships and location are public knowledge or are obtained through a valid search warrant, evidence obtained as a direct result of contact tracing data must be deemed inadmissible.

When society stops protecting the rights of criminal suspects, it stops protecting all of our rights.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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Contact Tracing Shouldn't Upend 4th Amendment Protections - Law360

Of the many ideas for police reform to gain traction following the murders of George Floyd and Breonna Taylor by law enforcement, ending the judge-made legal doctrine of qualified immunity stands out for its tri-partisan and popular appeal.

More than 1,400 current and former pro athletes and coaches, including NFL stars Odell Beckham Jr. and Tom Brady, posted an open letter to Congress in support of the idea. Sen. Mike BraunMichael BraunLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE (R-Ind.) declared his interest in introducing legislation. And it is a centerpiece of the Justice in Policing Act, which is quickly making its way through the House and proposes eliminating qualified immunity for state and local law enforcement.

But few have noticed that the bill leaves in place an FBI-SWAT-team-sizedloophole that shields federal officers from judicial accountability.Now is the moment to hold all law enforcement officers accountable for violating the United States Constitution.

The current version of the Justice in Policing Act would largely end qualified immunity for state and local law enforcement by amending Section 1983. Enacted as part of the Civil Rights Act of 1871 in the aftermath of the Civil War, Section 1983 ensures that state and local officers can not violate individuals federal constitutional rights with impunity which law enforcement in the recently vanquished former confederacy stood ready and eager to do. It allows individuals to sue state and local officials to recover damages for constitutional violations, and has been the primary tool that victims of police brutality use to secure redress for constitutional injuries ever since. Although in practice qualified immunity has made it nearly impossible to hold state officers accountable for the deprivation of rights.

At the federal level, the situation is even worse, because there is no corresponding statutory cause of action for those who suffer constitutional injury at the hands of federal officers. In 1971, the Supreme Courts decision in Bivens v. Six Unknown Federal Narcotics Agents recognized limited circumstances in which the Constitution itself authorizes victims to recover damages in cases involving federal officers, potentially putting federal abuses to the same test as the one applied to state and local wrongs.

But the Court has consistently and significantly curtailed the availability of these so-called Bivens claims in recent years. In its February decision in Hernndez v. Mesa, the Court all but shut them down, express[ing] doubt about [its] authority to recognize causes of action not expressly created by Congress. As Justice Clarence ThomasClarence ThomasLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE declared in his concurring opinion, the time has come to consider discarding the Bivens doctrine altogether.

The fact that section 1983 cannot be used for federal officer misconduct, coupled with a Court increasingly reticent to sustain one absent a statute that creates it, means that victims of constitutional violations by federal officers too often have limited recourse. ICE officers who conduct illegal searches and seizures in violation of the Fourth Amendment, federal law enforcement officers who give falsified evidence in violation of the Sixth Amendment, TSA officers who violate individuals First Amendment rights and prison officials who subject inmates to punitive strip searches in violation of the Fourth and Fifth Amendments have all been found to be immune from judicial accountability. It is not unreasonable to expect that the Supreme Court will soon eliminate the Bivens doctrine altogether, leaving victims of unlawful actions by federal officers with no recourse.

For those who suffer constitutional violations by those sworn to protect them, whether the offending officer is a county sheriff or DEA agent is irrelevant. The distinction shouldnt matter to the law either. And yet it does.

Take the protesters who gathered in Lafayette Square on June 1 to protest systemic racism and the police killings of George Floyd and Breonna Taylor. As shocking footage from the Washington Post shows, federal law enforcement officers violently and without provocation dispersed the otherwise peaceful crowd. Such victims of police violence deserve to have a legal remedy. Soon, because of judicial trends and inaction from Congress, they might not.

Congress must step in to fill this lawless void by codifying Bivens claims. Closing this loophole would not only provide victims with an avenue for relief, but also help to deter future abuses. The Supreme Court has recognized the importance of judicial accountability in preventing federal law enforcement misconduct, not just remedying it, observing that the function of a Bivens suit is in part to deter individual federal officers . . . from committing constitutional violations. Without a federal Bivens statute without a mechanism for judicial accountability Congress provides federal law enforcement with little incentive to abide by its laws.

The United States needs a modernized Civil Rights Act of 1871 for the year 2020. Just as Congress did in creating section 1983 to authorize suits against state and local officers who terrorized newly freed slaves and those who might come to their aid, it should guarantee a private right of action for recovery of damages for constitutional violations by federal officers, retroactively and for future abuses. Any efforts at police reform that stop short of applying the law equally, no matter the badge, will fall short.

Justin Vail is a policy advocate at Protect Democracy. Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and a former federal prosecutor in Washington DC and Deputy Assistant Attorney General in the Civil Rights Division.

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Police reforms should include federal cops too | TheHill - The Hill

The horrific killing of George Floyd makes obvious what observers of the legal system have long decried: the corrosive effect of racial discrimination on the American system of justice. The Floyd homicide has terrible echoes of so many others, including the killing of Eric Garner in 2014, who was choked to death by a white police officer as he pleaded to be allowed to breathe.

The protesters who march to end such discrimination are combating a pervasive defect in how the American legal system works, from policing to prosecuting to sentencing. Study after study confirms that our criminal laws are enforced in a racially disparate manner, with African Americans and Latinos being treated much more harshly than whites for minor crimes and serious ones.

Examinations of traffic stops reveal that black drivers are stopped more frequently than white ones. In New York, a federal court found that officers of the New York Police Department used stop-and-frisk discretion overwhelmingly against young men of color, despite the fact that these actions yielded less contraband than searches of whites.

In Ohio, where blacks constitute about 12% of the population, 56% of the men on death row presently are African Americans.

The solution to such discrimination should lie with the federal courts, which are charged with enforcing the U.S. Constitution. The 14th Amendment provides that no state including local governments might deny equal protection of the laws. The Fourth Amendment guarantees that the police may not unreasonably seize or search people, and racially discriminatory law enforcement is the epitome of unreasonableness.

Yet the U.S. Supreme Court has failed to put teeth into these provisions of the Constitution. In the notorious case of McCleskey v. Kemp in 1984, for example, the court rejected an equal protection challenge by a black death row inmate who showed that blacks found guilty of murder in Georgia, especially those who had killed whites, were sentenced to death much more frequently than white murderers. The court held that McCleskey could not rely on evidence of systemic racism in Georgias system, but would have to prove that the prosecutor, judge, or jurors in his case had acted against him for racially discriminatory reasons an almost impossible burden in most cases.

In evaluating the reasonableness of police actions under the Fourth Amendment, an increasingly conservative Supreme Court consistently refuses to hold police accountable for troubling uses of force. The court ruled that even in cases where deadly force is used in questionable ways, police officers are almost always immune from sanctions for violating the Fourth Amendment.

Confronted by a hostile federal judiciary, those who wish to eradicate racial bias from our legal system must turn to the ballot box. Political leaders have significant powers to stem the tide of racial discrimination in law enforcement, if they are willing to use them.

For eight years, the Obama Justice Department aggressively used federal law to reign in abusive practices by local police departments. From Ferguson, Missouri, following the killing of Michael Brown, to Cleveland, Ohio, after the killing of the unarmed 12-year-old Tamir Rice, the Obama administration used federal law to punish and prevent such abuses.

Yet when Donald Trump was elected, one of his first actions was to roll back investigations of racially discriminatory law enforcement. Indeed, the Minneapolis Police Union President Bob Kroll, who labeled George Floyd a violent criminal, spoke this fall at a campaign rally for Donald Trump and praised him for repudiating the Obama policies aimed at preventing abusive police practices.

Elections can have far-reaching consequences for justice. In Philadelphia and other communities, reformist candidates for district attorney like Larry Krasner have won election based on their commitment to overhauling how the justice system unfairly treats minorities.

U.S. Rep. Joyce Beatty has taken to the streets to promote understanding between protesters and police. Ohio Gov. Mike DeWine has spoken out forcefully against the killing of George Floyd.

Martin Luther King Jr. argued that the arc of the moral universe is long, but it bends toward justice. In November 2020, we will have a crucial opportunity to decide how long that arc toward justice will take.

Dan Kobil is a professor at Capital University Law School where he teaches constitutional law and criminal procedure.

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Column: Upcoming election will be key to confronting discrimination in our legal system - The Columbus Dispatch

On June 3, protestors in Washington, D.C., who rallied in response to the death of George Floyd were met with federal law enforcement officers equipped with riot gear and rifles but who lacked badges or other identifying information. When asked about their affiliation, these officers responded that they worked for the Department of Justice or the federal government, but they did not offer more detail.

The officers refusal to identify themselves immediately sparked criticism. Observers raised concerns that this practice could lead protesters to resist lawful orders and create opportunities for armed provocateurs to pose as law enforcement. Some even drew comparisons to the armed and unidentified little green men who appeared in the Crimea region of Ukraine shortly before its 2014 occupation by Russia and were widely believed to be Russian soldiers operating anonymously.

Since the first days of protests in Washington, D.C., many of the unmarked officers have been identified as part of special operations response teams for the Bureau of Prisons. But the question remains: What legal authorities require officers to share their identities, and are there any consequences for failing to do so?

After news reports linked the unidentified officers to the Bureau of Prisons, Attorney General William Barr attempted to explain the officers behavior by stating that [i]n the federal system, the agencies dont wear badges with their names and stuff like that. I could understand why some of these individuals simply wouldnt want to talk to people about who they are, if that in fact was the case. Similarly, a statement from the bureau said that [i]t is common for federal law enforcement agents to identify themselves to citizens simply as federal law enforcement. However, the director of the bureau said, I probably should have done a better job of marking them nationally as the agency.

Nor was this the only instance of law enforcement officers attempting to hide or obscure their identities during the recent nationwide protests. In several cities, including Seattle, New York and Chicago, individuals also reported that a few police officers deployed to the protests covered their badge numbers with tape. Such obfuscation has been widely criticized, even by city officials. Chicago Mayor Lori Lightfoot stated that the officers who refused to identify themselves forfeited the right to be Chicago police officers, although she would not have the final say about whether to discipline the officers.

Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information. Generally, federal law enforcement conduct is guided by the internal regulations of the particular law enforcement agency for whom the officers workor, when federal officials are not involved, the regulations of local police departments.

For this reason, the majority of litigation analyzing law enforcement officers obligation to disclose their identities focuses on two scenarios that are somewhat inapposite to current events: undercover law enforcement operations and the potential for entrapment; and search and seizure cases implicating an individuals Fourth Amendment rights. Courts have adopted a broad definition of seizure that includes displays of force and the use of language that implies compliance is required. Thus, the legal analysis underpinning the second scenario provides the clearest guidance on the standards courts would likely look to in litigation surrounding the recent failures of federal law enforcement officers to disclose their identities. Nevertheless, the current circumstances, where individuals are clearly law enforcement but refuse to identify themselves, present a distinct and novel issue.

The central question in analyzing such officers behavior would be whether or not it was reasonable. The Fourth Amendment precludes the government from conducting unreasonable searches and seizures, but, as the Supreme Court noted in Mapp v. Ohio (1961), there remains no fixed test for reasonableness. Instead, trial courts determine reasonableness using an objective standard on a case-by-case basis. The reasonableness inquiry under the Fourth Amendment focuses on the specific context and the threat that the suspect poses. In the event that an individual believes law enforcement failed to conduct a seizure reasonably, that individual may pursue a civil action against the relevant government officers for a violation of his or her constitutional rights. But such a suit may be brought only after the alleged constitutional violation has occurred, which highlights the challenges posed by the current situation; if the officers did not conduct a search or seizure of a protestor, there would be no basis to challenge their behavior under the Fourth Amendment.

Additionally, even in the event of a constitutional violation, the doctrine of qualified immunity creates a high bar for recovery when a law enforcement officer is sued. Once again, a reasonableness standard is essential. Only if the right in question has been clearly established and a reasonable officer would not believe that the activity the officer engaged in was lawful, will that officer be denied qualified immunity. (For a broader discussion of the arguments for and against qualified immunity, see this Lawfare post.)

The nature of the inquiry into the reasonableness of a law enforcement officers failure to identify as such is largely dependent on where the search or seizure in question occurred. While the Supreme Court has recognized a requirement that police officers should generally knock and announce themselves prior to searching a house, it has not made this an absolute requirement for a search to be reasonable. Rather, in Wilson v. Arkansas (1995), the Supreme Court stated, We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry. Generally speaking, the Supreme Court has recognized the special status of the home but has been loath to broadly extend the equivalent of a knock and announce requirement to law enforcement actions in the public sphere.

The cases most germane to the present situation therefore focus on the question of whether plainclothes police officers need to identify themselves as law enforcement so that individuals do not think they are being assaulted by a civilian when stopped in public. Courts have held that, although officers generally should identify themselves in these situations, in certain circumstances it may be reasonable for them not to disclose their status as law enforcement. In considering whether to grant qualified immunity to an officer who did not say he was from the police, the U.S. Court of Appeals for the Seventh Circuit held in Catlin v. City of Wheaton (2009) that it is far from clearly established that the Fourth Amendment requires police officers to identify themselves in the course of carrying out an arrest in a public place. The defendants prevailed in that case in part because their decision not to identify themselves was deemed reasonable given that the suspect was a known drug kingpin who could pose an immediate and violent threat.

Thus, there is no absolute requirement that law enforcement officers identify themselves prior to conducting a search or seizure. Instead, a failure to do so bears on the reasonableness of the officers overall behaviors, including, as the U.S. Court of Appeals for the Eighth Circuit noted in Atkinson v. City of Mountain View, Mo. (2013), the nature of the plaintiffs crime and whether or not the plaintiff posed an immediate threat to the officer. A unanimous Seventh Circuit panel in Doornbos v. City of Chicago (2017) stated that, [a]lthough some unusual circumstances may justify an officers failure to identify himself in rare cases, it is generally not reasonable for a plainclothes officer to fail to identify himself when conducting a stop. Thus, there is some chance that an officer could be denied qualified immunity on the basis of a failure to identify if that failure was deemed unreasonable and precedents just discussed had clearly established a right to disclosure. Additionally, whether or not a law enforcement officer has identified himself or herself prior to effecting a stop or seizure has some influence on how a court interprets a criminal defendants subsequent actions. Nevertheless, it remains difficult for someone suing a law enforcement officer to clear the highly protective bar for qualified immunity the Supreme Court has set.

Recent events are somewhat different from the aforementioned cases in which law enforcement officers appeared indistinguishable from civilians. But litigation arising from law enforcement officers failure to identify themselves during the recent protests would likely entail a similar inquiry into the objective reasonableness of an officers activity. The U.S. Court of Appeals for the Eleventh Circuit found in Beckman v. Hamilton (2018), for example, that officers in plain view and in full uniform provided civilians notice sufficient to obviate the need for verbal identification as law enforcement.

This standard can prove challenging, however, in contexts where officers are outfitted with equipment that is not commonly associated with the police. For example, some of the Bureau of Prisons officers who were operating in Washington, D.C., were wearing blue short-sleeve T-shirts rather than more traditional uniforms. In certain circumstances, including the recent protests, there is also a genuine risk that militarized civilians dressed similarly to militarized law enforcement officers may also be operating on the scene. In such circumstances, peaceful protestors may not know who is actually law enforcement unless those officers clearly identify themselves.

Nevertheless, it remains unclear how other circuits or the Supreme Court would interpret the present scenario. Moreover, the lack of reasonableness in officers failing to identify themselves may be heightened in the context of the current protests, because the protestors are unlikely to flee or be armed and thus cause the type of threat where such a tactic would be necessary.

Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York Citys Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions their name, rank, command, and shield number. Similarly, Section 5331.09 of the Code of the District of Columbia requires that the Metropolitan Police Department ensure that all uniformed officers assigned to police First Amendment assemblies are equipped with the enhanced identification and may be identified even if wearing riot gear, including by modifying the manner in which those officers names or badge numbers are affixed to the officers uniforms or helmets to make the information more visible.

The Justice Department has also previously played an important role in making sure that police departments meet accountability standards for displaying identifying information. In 2014, it criticized the Ferguson Police Department for reports of officers having failed to wear nameplates, which emerged as part of an investigation into the police department for an alleged pattern or practice of unlawful misconduct. The investigation was triggered in part by the killing of Michael Brown, an African American man, by a white police officer. A Justice Department letter sent to Ferguson police explained that [o]fficers wearing name plates while in uniform is a basic component of transparency and accountability. Allowing officers to remain anonymous when they interact with the public contributes to mistrust and undermines accountability. The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity. Requirements that officers introduce themselves by name and rank as soon as practicable during investigatory and noncustodial stops was also part of the consent decree between the City of Ferguson and the Department of Justice, which was entered into in March 2016 in the wake of the Justice Departments investigation. The new guidelines were intended to promote the police departments efforts at community policing. Even prior to the consent decree, municipal law in Ferguson required that officers wear the regulation uniform while on duty and a nameplate was part of that regulation uniform.

The Trump administration later reviewed the past use of consent decrees and made similar decrees harder to enter into going forward when then-Attorney General Jeff Sessions issued a memo that, among other things, required final approval from high-level political appointees for consent decrees including from both the leadership of the Justice Department as a whole (from the deputy attorney general or the associate attorney general) and from the section of the department that litigates the relevant subject matter. The new rules also required that future consent decrees include a sunset provision after which they would phase out. The Ferguson consent decree, however, remains in place.

Will recent events trigger a renewed federal interest in these sorts of activities? Following protests in D.C., both Speaker of the House Nancy Pelosi and D.C. Mayor Muriel Bowser sent letters to President Trump echoing concerns about a lack of accountability for unmarked officers. On June 4, Pelosi requested a full list of the agencies involved in responding to protests in Washington, D.C., and explained that the situation had been made worse when some officers have refused to provide identification and have been deployed without identifying insignias, badges, and name plates. Similarly, Bowser expressed her continued concern that unidentified federal personnel patrolling the streets of Washington, DC[,] pose both safety and national security risks to the largely peaceful protests and that the units that lack identifying insignia were adding to the confusion. Barr responded to Bowsers letter on June 9, writing that forces had been deployed from federal agencies including the U.S. Marshals Service, the Drug Enforcement Administration, the Bureau of Prisons, the FBI, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. He added, I can assure you that all of the federal and National Guard personnel operating within the District have been doing so consistent with authorities provided under federal law and the law of the District of Columbia.

These concerns are also leading to some legislative activity on Capitol Hill. A group of representatives led by Democratic Rep. Don Beyer introduced the Law Enforcement Identification Act on June 11. The act would require that each federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in protest shall at all times display identifying information in a clearly visible fashion. This information would include the officers last name and badge number, the name of the federal agency for whom the officer works, and the officers rank.

Democratic Sens. Chris Murphy and Chuck Schumer have also announced that they are introducing legislation requiring unidentified law enforcement officers and members of the Armed Forces to clearly identify themselves and their agency or service while they are engaged in crowd control or arresting individuals involved in civil disobedience or protests in the United States.

The future of such legislation remains uncertain, likely hinging on Trumps receptivity so long as he is in office. But the recent appearance of the unidentified armed agents on American streets may well spur more demands for requirements that federal officers both display identifying information in certain contexts and disclose their employers when asked. Similarly, at the local level, reformers may advocate that police departments lacking requirements for police to show identifying information should introduce them, and that departments with identification regulations in place should impose harsher penalties for failure to disclose and engage in other forms of oversight for officers who attempt to cover up their badges.

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Can Law Enforcement Officers Refuse to Identify Themselves? - Lawfare