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The U.S. is now more than 20 years beyond the Patriot Act of October 2001. The immediate aftermath of 9/11 brought a heavy U.S. state focus on Arabs and Muslims in the U.S., rationalizing an expansion of policing and surveillance activities against them. It also inspired the convergence of shared struggles for liberation out of a growing consensus that we cannot abolish policing without abolishing U.S. militarism and empire building.

The anything goes context of 9/11 opened up possibilities for expanded forms of policing and surveillance that are unconstitutional. The National Security Entry-Exit Registration System (NSEERS), also known as special registration, put in place by the Department of Justice in 2002, targeted Arabs and Muslims as well as those from the Middle East and South Asia. Overly broad interpretations of material support laws denied people generally Arabs and Muslims their freedom and even threatened some forms of humanitarian aid.

But none of this was entirely new. All this was preceded by President Richard Nixons Operation Boulder, which law professor Susan M. Akram has described as perhaps the first concerted US government effort to target Arabs in the US for special investigation with the specific purpose of intimidation, harassment, and to discourage their activism on issues relating to the Middle East.

Ironically, Timothy McVeighs 1995 Oklahoma City attack opened the door to the Clinton administration pushing forward a legislative effort allowing the government to use evidence from secret sources in deportation proceedings for aliens suspected of terrorist involvement. Under the measure, the government would not have to disclose the source of the damaging information to the person whom it is seeking to deport, The New York Times reported. A white extremist, then, had carried out a deadly bombing, but it was Arabs and Muslims (including Black Arabs and Black Muslims) who faced the prospect of deportation without ever being able to confront their accuser or even know the identity of those accusing them.

According to the ACLU:

The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists.

As Arab and Muslim communities were subjected to institutionalized racial profiling, this too frequently encouraged individual anti-Arab and Islamophobic actors who further intimidated and committed acts of violence against Arab and Muslim individuals in everyday life. Between 2000-2009, these violent incidents increased by over 500 percent; since 2016, 484 incidents of hate-motivated violence have been reported and many continue to remain unreported. In the Middle Eastern, North African and South Asian regions, of course, the U.S. military killed people en masse while engaging in torture. The U.S. government also supported authoritarian dictators like Egypts Hosni Mubarak who would further the U.S. imperialist agenda and simultaneously collaborate in the ongoing colonization of Palestine and siege of Gaza.

According to the Project on Government Oversights Jake Laperruque, the U.S., in its rush to crack down on these domestic communities, swept up international communications on an enormous and unprecedented scale. Laperruque also notes that internal U.S. communications were surveilled, as were internet metadata.

When eventually disclosed, this surveillance troubled and infuriated people across the political spectrum, some who cared about ending racial profiling of Arabs and Muslims, and some who generally had spent years inflaming such hatred. Many strands of society were incensed that their communications were being monitored by the government. Yet those with history in U.S.-based Global South liberation movements who were targeted by programs like Nixons Counter-Intelligence Program (COINTELPRO) or those whose ancestors were killed via collaborations between the KKK and the FBI knew all too well that the Constitution was meant to protect white supremacy rather than protecting us all. At the same time, the Patriot Act truly alarmed liberals and radicals alike in its potential to perpetrate a massive expansion in policing, surveillance and repression.

The George W. Bush administration had effectively circumvented the Fourth Amendment with its protections against unreasonable searches and seizures.

Attempts to override the entirely bankrupt legislative action of the USA Freedom Act of 2015, was a consequence less out of concern over targeting Muslims and Arabs than anger over the widespread sweeping up of so much information about U.S. citizens read: white people.

I lived through these past 20 years between communities in California, Illinois and Michigan. The fear was real. While working-class Arab Muslim immigrant men over the age of 16 were forced to register at their local Immigration and Naturalization Service office as part of the NSEERS program, their loved ones stood outside wondering if they would ever see them again.

The reports of violence against Arabs and Muslims and those perceived to belong to those categories were terrifyingly routine. Some stories reached the mainstream media; most circulated simply through word of mouth.

Now, in 2021, following the defeat of former President Donald Trump and his open promotion of anti-Muslim policies, we are witnessing the culmination of efforts led by Muslims and Arabs in the U.S. to build community-based power beyond the psychological and emotional incarceration endured between the Bush and Trump years.

The Arab Resource & Organizing Center in Californias Bay Area along with the Arab American Action Network in Chicago have for years fought back in coalition to support anti-imperialist and abolitionist principles. Left-leaning Arab and Muslim movements are affirming that just because Trump is out doesnt mean these efforts will relent under President Joe Biden, especially not with his interventionist history and long years of support for Israelis colonial policies that have been killing, containing and displacing Palestinians with U.S. weaponry.

These organizations recognize that U.S. empire-building connects movements fighting anti-Black police violence, those pressing back against anti-Arab U.S. militarism and the war on terror, as well as groups resisting the militarization of the border and the ongoing colonization of Native land.

The recent news out of Virginia Beach of an ongoing racist attack on a Black familys home with music blaring racial slurs and monkey sounds as strobe lights flashed at the house while authorities dithered sounded all-too-familiar to me. It reminded me of my own research in 2021 with the Institute for Research on Race and Public Policy in the Chicago area on the status of racial justice for Arab Americans.

I had been connected to a Muslim woman who was harassed by her neighbors for three years, notwithstanding a restraining order. She told me she felt like a hostage in her own home and police were unwilling to stop the ugly attacks from neighbors coming up to the window and shouting, Fk Arabs, fk Muslims. This would be followed by calls for the family to get out of the U.S.

The animosity both families have faced is painful and traumatic and stems from the same root cause U.S. racial capitalism and empire building. But younger generations of Black people, Arabs and/or Muslims have also in the last decade recognized more than ever the necessity of conjoining our struggles against racist police violence.

This was seen most visibly in Ferguson, Missouri, but is also witnessed, for instance, in Palestinian-Black solidarity efforts across the country as young Palestinian Arab activists organize against police violence disproportionately targeting Black people, while Black activists align with the Palestinian call for boycott, divestment and sanctions against Israel.

As the Palestinian Youth Movement said in its 2014 statement of solidarity with Ferguson: Whether the PATRIOT ACT or COINTELPRO, the targeting and criminalization of our communities must end now. These efforts have extended through defund the police and abolition efforts uniting both communities.

Shortly after 9/11, I remember the national coalitions like Racial Justice 9/11 that grew overnight when tens of social movements affirmed their unity in the face of the expanding powers of the U.S. nation-state. Today, similar coalitions are inspired by the shared concern over the ways U.S. counterinsurgency tactics that repress movements have expanded, violently justifying the repression of Black, Indigenous and people of color (BIPOC)-led groups like the Movement for Black Lives.

When the Bush administration consolidated its internal war on Arabs and Muslims with the Patriot Act, it helped show Trump the power to move a portion of the U.S. public toward increasingly outward-facing white supremacy. Yet it also set in motion new coalitions. These coalitions have urgently grown out of the imperialist and racist policies implemented first by President George W. Bush, and then even more openly by Trump.

I wouldnt wish those first traumatic months in 2001-2002 on anyone. Yet the solidarity resulting at least in part from the overreach and unconstitutional nature of the Patriot Act, followed by the racism of the Trump administration, gives me a measure of hope.

For all Trumps efforts to roll back previous social movement wins, many breakthroughs came out of his 2016 presidential victory. More and more grassroots mutual aid movements have materialized, affirming the necessity of growing practices of collective love and reciprocity as alternatives to state violence. Two Muslim women, one Palestinian and one North African, entered the U.S. Congress in 2019 in Palestinian American Rashida Tlaib and Somali American Ilhan Omar. They were joined earlier this year by Rep. Cori Bush, who was active in the Ferguson demonstrations and has openly spoken of solidarity between Black Americans and Palestinians.

In the midst of the Israeli onslaught against Gaza this past May, Representative Bush tweeted: The fight for Black lives and the fight for Palestinian liberation are interconnected. She added: We oppose our money going to fund militarized policing, occupation, and systems of violent oppression and trauma. Tellingly, she spoke of being anti-apartheid.

Their voices in the halls of Congress are unprecedented. The effort to undermine them is intense. Yet we must remember that the long U.S.-led war on terror is an extension of the U.S.s colonial, expansionist and racial capitalist project, rather than an exception. We cannot get stuck in celebratory hope after the defeat of Trump. Presidents Bill Clinton and Barack Obama were not only complicit in the war on terror but also helped expand it.

As Kali Akuno, Brian Drolet and Doug Norberg posted on Facebook on October 27, in their critique of efforts to save democracy, this stance is not an argument to avoid or ignore fighting the further advance of fascistic authoritarianism. It is a critique of a view that restricts people to fighting against certain variants of capitalist governance to the exclusion of fighting against the capitalist system itself.

If anyone recognizes that President Biden does little to help the U.S. achieve democracy, equality or diversity, its my Arab immigrant community. Further, there is no sign of social transformation with Trump continuing to loom on the 2024 horizon and racist provocateurs continuing to organize and contest the 2020 election of a centrist candidate. This is why we need to be willing to imagine a radically alternative future.

Twenty years ago, I remember Arab activists like Rana Elmir demanding an end to the Patriot Act. Forced to reckon with it, they understood its potentially dangerous future. They shouted at protests that it not only expands the containment, repression, and profiling of Arabs and Muslims, but could also massively expand the U.S.s power to repress all progressive and BIPOC communities.

So here we are. Nicole Nguyen, expert on surveillance and the war on terror, reminds us that by expanding the concept of the violent extremist the United States has repressed resistance against the war on terror and resistance against the police.

In the face of this repression, we have no choice but to expand our practices of solidarity, creating hope through the convergence of shared struggles for liberation rooted in collective BIPOC traditions of care, nurturing relations with the land and each other, and in commitments to horizontal, non-hierarchical self-determination.

Read more from the original source:
20 Years After Patriot Act, Surveillance of Arabs and Muslims Is Relentless - Truthout

The Supreme Courts 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.

This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point. Carpenter raises the possibility that the Fourth Amendment may effectively protect sensitive digital data. But Carpenter is a notoriously vague opinion, and scholars have reached conflicting conclusions about its meaning and impact. What does Carpenter mean, and what will it mean in the future?

In a recent article forthcoming in the Harvard Law Review, I attempt to shed some light on Carpenter and its jurisprudential impact. I coded and analyzed all 857 federal and state judgments applying Carpenter through March 31, 2021. In doing so, I was able to identify the factors that drive modern Fourth Amendment search decisions and describe a nascent Carpenter test now emerging in the lower courts. I also examined overall compliance with Carpenter, finding that courts have largely embraced it, with almost no overt criticism and relatively little indirect noncompliance. And I encountered a shockingly high rate of cases resolved based on the good faith exception to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. These findings can help resolve some of the mysteries of Carpenter, illuminating both the present state of the law and the paths along which it will likely continue to develop.

The Carpenter Factors

Prior to Carpenter, information that an individual disclosed to a third party was not protected by the Fourth Amendment. Carpenter imposed at least some limits on this third-party doctrine going forward. But it did not set out a clear test for when third-party data is covered by the Fourth Amendment.

It did, however, describe several factors that were relevant to its decision in the cell phone tracking context. The court discussed the revealing nature of cell phone data, which could provide an intimate window into an individuals life and activities. It addressed the large quantity of location data available to the government, encompassing numerous data points per day for potentially long periods of time. It referred to the large number of people who would be affected by unrestrained cell phone surveillance. It described how cell phone data was automatically disclosed to a cell service provider and how cell phones were largely inescapable in modern life, meaning that the disclosure of cellular location data to third parties was essentially involuntary. And it detailed the low cost of cell phone surveillance, which made detailed location surveillance easy and cheap compared to traditional investigative methods.

Any or all of these factors might play a pivotal role in future cases. But, in Carpenter, the court gave no concrete test to guide future decisions; it merely discussed several principles that appeared important in the context of cell phone location tracking. The decision left it for future courts to determine how these principles should apply to novel Fourth Amendment questions. And so, several years after Carpenter was decided, I conducted the examination of lower court decisions described above.

In the dataset, 217 decisions reached a determinative, yes-or-no ruling on a Fourth Amendment search question. A majority (129) of these decisions discussed at least one of the Carpenter factors in reaching a judgment. For example, in United States v. Trice, the Sixth Circuit applied the factor that considers the amount of data captured, and found that it disfavored the defendant. Police officers had installed a hidden camera near a suspects apartment door and recorded four short clips of footage over a six-hour period. The court noted that this technique captured far less data than the detailed, prolonged cell phone tracking at issue in Carpenter. Ultimately, the court ruled that the use of the camera was not a Fourth Amendment search.

Overall, courts cited a variety of factors in cases resolving Carpenter questions, but they rarely discussed all or most of the factors together. Instead, courts often discussed the factors that influenced their reasoning and ignored the other factors, even when those factors might have pointed in the same direction. In determining which factors were most prevalent, my analysis found that the revealing nature of the data, the amount of data collected, and the automatic nature of data disclosure emerged as the most influential factors. The courts addressed the cost of surveillance and the inescapable nature of a technology only occasionally, although those factors were generally influential when they were addressed. Surprisingly, the number of persons affected by a surveillance practice was rarely discussed and had virtually no effect on case outcomes. Indeed, several courts overtly rejected this as a factor.

The revealing nature and amount of the data collected by the government were the most commonly used factors in the cases. Revealing nature was mentioned in 93 decisions, and amount was mentioned in 116 decisions. These factors were also strongly, and statistically significantly, correlated with case outcomes.

Whether a persons data had been automatically disclosed to a third party, or instead had been disclosed through a voluntary act, was a less common but still influential factor in the cases, appearing in 61 decisions and correlating significantly with case outcomes. This factor generally led courts to deny Fourth Amendment protectionsit was found to disfavor defendants in 82.6 percent of cases in which it appeared.

Moreover, as I have argued elsewhere, relying on concepts like automatic disclosure is often problematic. The disclosure of data to services like Uber, Google Maps, dating apps, smart home devices, websites and countless other providers is in theory voluntary and avoidable, but such disclosures are in practice an important part of peoples lives. Moreover, optional technologies such as dating apps, smart home devices and DNA analysis services often capture especially intimate personal information. And voluntariness approaches can create substantial inequalities in Fourth Amendment law. Technologies that are avoidable for most people are often unavoidable for others, including the disabled, the poor and other disadvantaged populations. For all of these reasons, courts should be cautious in definitively adopting automatic disclosure of data as a factor in a mandatory Carpenter test.

By contrast, the cost of surveillance is a potentially useful factor that courts should consider adopting in more cases. Conceptually, cost dovetails with amount. When the government is able to capture large amounts of data at a low cost, the potential for large-scale surveillance raises serious concerns about individual liberty and government power. By assessing the general cost of a surveillance practice, courts may be able to address concerns about large-scale surveillance programs via a relatively simple and administrable analysis.

Lower Court Compliance With Carpenter

Across more than 800 cases, courts have largely embraced Carpenter and its analysis. They have engaged in almost no overt criticism of the decision and its unique approach. And they have demonstrated relatively little indirect noncompliance. The law is still developing, but Carpenter appears to be workable in the lower courts.

Since June 2018, very few cases addressing the third-party doctrine have failed to cite Carpenter, suggesting that recognition of the case is widespread. There is circumstantial evidence of some courts engaging in indirect noncompliance with Carpenter. Indirect noncompliance refers to courts intentionally misinterpreting controlling precedent in order to reach a preferred outcome. In the dataset of 217 determinative search decisions, 29 decisions (13.4 percent) applied a strong version of the third-party doctrine that was arguably in tension with the Carpenter opinion, which imposed a meaningful limit on that doctrine. These opinions might represent a small pocket of resistance toward Carpenter, albeit a subtle, indirect resistance.

But judicial inertia toward a prior status quo is a common phenomenon, following a major legal change, and its occurrence here should not be too surprising. And, as theories of indirect noncompliance would predict, indirect noncompliance with Carpenter appears to be decreasing over time. The proportion of determinative cases that invoke a strong third-party doctrine has fallen in recent years, as judges become more familiar with Carpenter. In any event, the vast majority of cases show no explicit or even implicit resistance toward Carpenters reformation of the third-party doctrine.

The Enormous Impact of the Good Faith Exception

One of the most surprising findings of my analysis was the remarkable impact of the good faith exception on post-Carpenter case outcomes. The good faith exception provides that evidence obtained in good faith reliance on a statute, warrant or other authority will not be excluded, even if the authority was incorrect and the search for evidence was unconstitutional. The idea is that police officers relying on existing legal authority are acting in good faith and therefore cannot be deterred effectively by the exclusion of evidence. There were 399 decisions in the dataset that applied Carpenter substantively in a Fourth Amendment search case, and 144 of these were resolved based on the good faith exception without addressing the search issue, a rate of 36.1 percent. The vast majority of these good faith cases involved government officials obtaining historical cell phone location data without a warrant, the practice declared unconstitutional in Carpenter. In other words, a surprisingly large percentage of post-Carpenter cases involve unconstitutional government searches for which the persons affected have no meaningful remedy.

To be sure, the proportion of cases resolved via the good faith exception will decrease over time, as fewer cases are tried involving pre-Carpenter searches of cell phone data. But roughly 30 percent of cases were still being resolved on good faith grounds in 2020 and 2021, years after Carpenter was decided. Ultimately, it is likely that hundreds of criminal defendants will be convicted on the basis of searches that Carpenter deemed unconstitutional.

The remarkably high proportion of cases resolved via the good faith exception following a major Supreme Court decision should spur a reexamination of the exception. Current law may incentivize the police to aggressively apply new surveillance practices in order to secure convictions, even when those practices are likely unconstitutional. These incentives are examined in more detail in my article. They often involve police reliance on an old, general-purpose statute that is used to justify new and invasive forms of surveillance. Lower courts have applied the good faith exception broadly to justify novel surveillance practices, even when those practices have never been addressed by an existing statute or case. My studys findings should raise alarms about the potential for the good faith exception to incentivize widespread unconstitutional surveillance on the basis of flimsy reliance claims.

***

My articles detailed examination of post-Carpenter Fourth Amendment law yields other insights as well. It breaks down the cases by jurisdiction and examines changes in outcomes over time, while addressing the potential impact of selection effects. It examines differences in federal and state decisions, drawing lessons for federalism theory and debates regarding the capacity of state courts to address federal constitutional questions. It also analyzes the effects of political affiliation and exposure to judicial elections on case outcomes. And it suggests alternative approaches that can help to clarify and improve Fourth Amendment jurisprudence going forward. Indeed, the study opens the door to a variety of new proposals about the future course of Fourth Amendment law, grounded in a deeper knowledge of courts current practices.

Read this article:
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test - Lawfare

Existing federal privacy laws may not cover data collected from autonomous vehicles.

Equipped with an arsenal of cameras and sensors, autonomous vehicles record the world around them everywhere they go. They keep records of their own operational data, such as GPS location, speed, steering maneuvers, and braking actions. They watch the occupants of the vehicle, tracking which seats are filled, and sometimes they even record video images of the person in the drivers seat.

All of this recording creates more than five terabytes of data per hour of autonomous driving time. It also raises concerns about who has access to this data. Federal agencies and privacy advocates agree that it is important for companies developing autonomous vehicles to ensure that sensitive information is secure and to communicate clearly about which private parties have access to this information.

Existing federal legislation, however, is not likely to apply to data stored by autonomous vehicles. One statute that could apply is the 1986 Electronic Communications Privacy Act (ECPA), which describes rules for law enforcement to follow when obtaining contents of wired communications. The ECPA requires a warrant for the interception of communication in transit over the internet, or for unopened messages stored on personal computers. The ECPA only applies, however, to information obtained from electronic communications services or remote computing services. As defined by the ECPA, those terms would not cover autonomous vehicles.

A separate law called the Federal Communications Act (FCA) faces a similar issue. Title II of the FCA subjects all common carriers of telecommunications services to regulation by the Federal Communications Commission and requires common carriers to protect sensitive information for their customers. In 2015, internet service providers were considered common carriers under the Act, so the FCA might have applied to autonomous vehicles that offered wi-fi connections. Under current Federal Communications Commission policy, however, internet service providers do not qualify as common carriers, so Title II of the FCA does not apply.

The Fourth Amendment to the U.S. Constitution also governs privacy protection when it comes to law enforcements use of data stored on autonomous vehicles or held by automobile manufacturers. The Fourth Amendment protects civilians against excessive intrusions into their privacy by prohibiting the government from performing unreasonable searches and seizures of personal property. Although no court has yet heard a case involving autonomous vehicle data privacy, the U.S. Supreme Court has defined Fourth Amendment privacy rights for several types of personal data that autonomous vehicles will likely carry.

The U.S. Supreme Court has ruled in a series of cases that law enforcement must obtain a warrant before obtaining Global Positioning System (GPS) or cell tower triangulation information that enables accurate location monitoring. These rulings may indicate that any autonomous vehicle data that would enable law enforcement agencies to determine the accurate location of a person would also require a warrant.

The Supreme Court of Georgia has held that a warrant is required before speed history information logged in a vehicles event data recorder (EDR) can be examined by police after a car crash. This ruling may indicate that the kind of information an autonomous vehicle records as it plans its movements would also require a warrant before it could be examined by law enforcement officials.

The most significant new type of data generated by an autonomous vehicle is the record of the environment that the vehicle sees using its 360-degree visible light camera footage, forward-facing LiDAR, and infrared sensors. This situation is analogous to dash cams and CCTV security cameras attached to homes and businesses.

Although warrants or subpoenas are required to force private citizens to turn over camera recordings to law enforcement, many private security companies willingly share information with law enforcement. Plus, private companies that manage surveillance cameras have established partnerships with police departments to help them find cameras and facilitate waiver of Fourth Amendment rights from consumers who own the cameras. Given this trend, it seems likely that a company that operates a fleet of autonomous vehicles would also partner with law enforcement.

Strict privacy laws in states where many autonomous vehicle development companies are located may help to raise the standard for the whole industry. For instance, more than 50 companies are developing and testing autonomous vehicles in California, which has a state privacy law. The California Consumer Privacy Act (CCPA) requires companies to notify consumers about sensitive personal information collection and use, data monetization, and sale to third parties.

The CCPA also requires companies to allow consumers to delete and opt out of the sale of sensitive personal information. GPS data and personal identification information that is recorded by an autonomous vehicle is protected under the CCPA, but data logged by a vehicle that are not sensitive and personal may still not be covered by the act.

Although the Fourth Amendment and California law may provide a patchwork of protection for some types of autonomous vehicle data, there are no federal laws or regulations to impose basic protections of general data security and privacy. Because autonomous vehicles are products sold to consumers, the Federal Trade Commission could bring enforcement actions against automakers for deceptive practices, but this strategy would require waiting for deceptive practices to occur.

The National Highway Traffic Safety Administration includes data security and privacy as part of its goals for eventual autonomous vehicle regulation, but the agency has not yet proposed a rule materializing that goal. Such regulation could require autonomous vehicle manufacturers to incorporate industry guidance standards for privacy and data security, anonymize stored or aggregated data, or incorporate notice and consent for the use or sale of data.

State legislatures could pass laws that clarify ownership of autonomous vehicle data similar to proposed federal legislation known as the Driver Privacy Act. If Congress passed the Driver Privacy Act, information collected by EDRs would belong to the owner or renter of a vehicle. If state and federal governments were to clarify privacy requirements for autonomous vehicles, consumers would be better protected, and autonomous vehicle developers would face less regulatory uncertainty as they create new products.

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Too Many Eyes on the Road - The Regulatory Review

Whether you can exercise your First Amendment rights freely depends, in some cases, on where you live and what judges happen to hear your plea, should you try to seek accountability for government reprisal against your constitutional liberties.

One such case is that of Priscilla Villarreal, a journalist in Laredo, Texas, who in 2017 was arrested after publishing two stories that ruffled feathers in the community: one surrounding a U.S. Border Patrol agent who committed suicide, the other which confirmed the identity of a family who had died in a fatal car crash.

Villarreal was no stranger to breaking stories with sensitive details on her Facebook page, which currently boasts over 190,000 followers. Nor was she cozy with local law enforcement, having cultivated a reputation as a citizen journalist whofocuses on police misconduct and the justice system in videos she posts online infused with colorful commentary.She once live-streamed a video of an officer choking someone during a traffic stop, for example, and she drew the ire of a district attorney after publicly rebuking him for dropping an arrest warrant for someone accused of animal abuse.

But Villarreal found herself in a jail cell after breaking those two relatively benign stories concerning deaths in the community, charged with two third-degree felony counts of "misuse of official information" under Texas Penal Code 39.06(c). That she asked for and obtained the information in typical journalistic fashionfrom the Laredo Police Department (LPD) itselfdidn't matter to the cops, who zeroed in on Villarreal as the first person they would ever seek to prosecute under that Texas statute.

The charges were eventually dismissed as baseless and the law ruled unconstitutionally vague. But those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court. The legal doctrine of qualified immunity protects public officials from facing civil suits if the precise way they went about violating your rights was not "clearly established" by the courts at the time.

Yet in a testament to the subjectivity of the decisions surrounding what should be objective liberties, the U.S. Court of Appeals for the 5th Circuit Monday rejected the lower court's reasoning, removing qualified immunity from the cops on the bulk of Villarreal's claims and permitting her to state her case before a jury.

"This is not just an obvious constitutional infringementit's hard to imagine a more textbook violation of the First Amendment," wrote Judge James C. Ho. "If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well." Villarreal asked those questions of LPD Officer Barbara Goodman, who of her own free will provided the journalist with the information she requested.

The 5th Circuit likewise sided with Villarreal on her wrongful arrest claim, as well as her allegation that the cops violated the Equal Protection Clause to selectively enforce the law against her.

Much about the decision is noteworthy. Ho, for one, is by no means known for his opposition to qualified immunity; the judge previously said that police officers must retain the protections in order "to stop mass shootings." So it's significant that Ho emphasized that the 5th Circuit need not find a nearly indistinguishable precedent in order to show that the constitutional right at issue was "clearly established"which is often the defining element of a qualified immunity case, and the reason why the doctrine has greenlit so much egregious government misconduct, like stealing, assault, and property damage.

To support his position, Ho cited the Supreme Court's 2020 decision in Taylor v. Riojas, which dealt with a group of prison guards who originally received qualified immunity after forcing a naked inmate into two deplorable cells swarming with human feces and raw sewage. The Supreme Court overturned that grant of qualified immunity and rejected the notion that the victim could not sue simply because he couldn't pinpoint a ruling that matched his experience almost identically.

That's not necessary here either, said Ho: The constitutional violation is just that absurdly apparent.

"Crucially, the decision also says that officers can't hide behind obviously unconstitutional statutes," says Jaba Tsitsuashvili, an attorney at the Institute for Justice, a public interest law firm that filed an amicus brief in support of Villarreal. "In other words'we were just enforcing the law' is not a categorical defense against a civil lawsuit for violating" a constitutional right.

Perhaps ironically, the 5th Circuit's decision Monday coincided with the Supreme Court declining to hear Frasier v. Evans, a case in which a group of Denver police officers received qualified immunity after conducting a warrantless search of a man's tablet in an attempt to delete a video he took of the officers beating a suspect during an arrest for an alleged drug deal.

Put more bluntly, the way you exercise your First Amendment rights may or may not be protected based solely on where you live and which federal circuit court you are subject to. The 1st, 3rd, 5th, 7th, 9th, and 11th Circuits have all confirmed what might be obvious to most: that the government cannot exact revenge on you for filming police on duty, a lever used to hold them to account. In some places, however, they can indeed retaliate and evade accountability for that, toojust as Villarreal almost missed her opportunity to do so, had the 5th Circuit not overturned the lower court's decision.

"It creates this territorially arbitrary vindication of rights, where if you're in one state you may be able to vindicate a constitutional right," says Tsitsuashvili, "but if you happen to be in a neighboring state that sits in a different judicial circuit, you won't have any recourse for essentially the exact same behavior."

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Cops Arrested Her for Exercising Her First Amendment Rights. They Got Qualified Immunitybut the Appeals Court Wasn't Having It. - Reason

A former Minneapolis police officer has been convicted of stealing drugs he seized during searchesand traffic stops.

Ty Jindra, 29, was found guilty in federal court of three counts of acquiring a controlled substance by deception and two counts of deprivation of rights under color of law, the U.S. Attorney's Office said Tuesday.

Ty Jindra failed to uphold his oath as a peace officer, he failed the community he was sworn to serve, and he failed his fellow officers, Acting United States Attorney W. Anders Folk said in a statement.

From September 2017-October 2019, while he was an officer with Minneapolis Police Department (MPD), Jindra obtained methamphetamine, oxycodone, fentanyl, tramadol and other drugs by conducting unconstitutional searches and seizures, and then didn't report, log or put the drugs into evidence, the release said.

Jindra, on some occasions, would search a person, vehicle or home so he could secretively recover drugs without his partner seeing him, the release said. And at times, he conducted searches that were beyond what was warranted in an attempt to recover drugs.

According to the Star Tribune, in one instance he stole Tramadol, a synthetic opioid, during a traffic stop for his own use and did not mention he discovered the drugs when he filed his report. In another instance, he separated some oxycodone pills for himself during a traffic stop, hiding the pills in a latex glove. He then submitted a false report claiming all the pills were in evidence.

He was also convicted of illegally searching vehicles during traffic stops in violation of the Fourth Amendment that prohibits unreasonable searches.

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The U.S. Attorney's Office says Jindra faces a maximum sentence of up to four years in prison for each of the three counts of acquiring a controlled substance and a maximum of one year in prison for each of the two civil rights counts.

A sentencing date hasn't yet been scheduled.

Jindra was hired by the Minneapolis Police Department in 2013 and was fired in July 2020 after he violated department policies related to searches and seizures, charges said.

He was charged with an 11-count indictment in November 2020. His trial lasted nine days, the U.S. Attorney's Office said.He was found not guilty on six other counts he faced.

See the article here:
Ex-Minneapolis cop convicted of stealing drugs during searches - Bring Me The News