3rd circuit – Techdirt (original) (raw)

Court Tosses Lawsuit From Woman Wrongly Jailed For 2 Weeks Because ‘Bivens’ Precedent Only Works For Webster Bivens

from the what-was-even-the-point-of-the-original-decision-then dept

If you think qualified immunity is awarded far too frequently during far too many cases involving obvious rights violations, brace yourself for the harrowing insanity that is the wreckage that has been made of Supreme Court’s Bivens decision.

That case involved rights violations by federal officers against Webster Bivens. The Supreme Court found in favor of Bivens and created a cause of action that allowed people to sue federal officers in court. It shouldn’t have bothered. Since then, almost zero federal courts have allowed plaintiffs to bring lawsuits under this precedent. Any time one of the lower courts does, the Supreme Court reminds them that a Bivens lawsuit’s facts have to be almost exactly the same as those involving the original plaintiff in the 1971 case. Anything else is considered to be creating a “new” cause of action and strictly forbidden.

And so it goes here in the case of Judith Henry, who was arrested by US Marshals and held for two weeks (in two different jails) before someone finally decided to run her prints. Once that happened, law enforcement finally realized they had the wrong person in custody.

The Third Circuit — like pretty much every other federal court — says Henry can’t sue the Marshals who arrested her. The facts of the case, though, are absolutely flabbergasting. From the decision [PDF]:

In 1993, a different woman named Judith Maureen Henry (the “Absconder”) skipped parole in Pennsylvania.

Fast forward to 2019, when the director of the Pennsylvania Interstate Parole Services issued a warrant for the Absconder’s arrest for the parole violation. That warrant, however, targeted Henry’s home address and attached her driver’s license photo. Parole Services forwarded the warrant to officials in New Jersey.

It’s not the most egregious case of mistaken identity. Both the parole violator and the innocent woman had the same name. But it does seem extremely absurd that Pennsylvania parole services is issuing warrants for someone it apparently hadn’t checked up on in more than two decades. Given that massive time gap, more due diligence was needed to ensure the wrong person didn’t get picked up, which obviously didn’t happen here.

Instead, the information passed on to the Marshals Service told the officers to find this woman at this address. Which they did. She protested during her arrest, but there was no reason (at that time) for the involved officers to doubt they had the correct person.

But they could have followed up rather quickly and painlessly on her protests. She repeatedly asked them to take her prints and compare them to those of the absconded Judith Henry. These requests were ignored until she was transferred back to Pennsylvania. The wrong Judith Henry was arrested on August 22. Her prints weren’t taken until September 3. Then, despite knowing her prints weren’t a match, Pennsylvania law enforcement kept her in jail until September 5.

The appeals court says the Marshals were justified in relying on the arrest warrant, especially since the arrested person had the same name as the parole violator they were looking for. But even if these violations — including the extended detention — were firmly linked to the Marshals (who only effected the arrest), this wouldn’t have worked out for the innocent Judith Henry. And that finding still holds even if the Third Circuit agrees (which it does) that the state officers working with the Marshals can be treated as federal officers for the purposes of this lawsuit.

The precedent is so narrow it only applies to one person: and that person is the one who helped create the precedent that apparently is now impossible to apply to anyone else for any reason.

The only Supreme Court case authorizing a Bivens remedy for police misconduct is Bivens itself. Ziglar, 582 U.S at 131.3 The complaint in Bivens alleged that the plaintiff was invalidly subject to a warrantless arrest in his home. 403 U.S. at 389. We do not read Henry’s complaint as sufficiently alleging that state of affairs.

As the decision notes, the Supreme Court has only authorized a Bivens action three times since its 1971 ruling. Its direction to lower courts is to reject any “extension” or “new context” if judges see “any reason to pause” before attempting to expand this precedent. How that works out for plaintiffs is that the government always wins, no matter what violations federal officers have committed. There’s just not enough space left in the jurisprudence for plaintiffs to get a cause of action in edgewise.

A context is new if it “is different in a meaningful way from previous Bivens cases decided by” the Supreme Court. Ziglar v. Abbasi, 582 U.S. 120, 139 (2017). Whether a context is new is an “easily satisfied” test because “a modest extension [of the Bivens action] is still an extension.” Id. at 147-49. Even “significant parallels to one of the [Supreme] Court’s previous Bivens cases” may not be enough.

That shuts down pretty much the entire lawsuit. As for Henry’s far-from-unreasonable requests she be fingerprinted to clear up the confusion, the court has this to say about this request that went ignored for most of two weeks:

We grant that, asking those questions in this case, a reasonable observer could conclude the answers are not hard to find and would impose minimal burdens on the Marshals. Henry’s request was modest: merely that her fingerprints be compared to the Absconder’s. But it is for Congress, not the judiciary to “balance[] the costs and benefits” of a cause of action against the Marshals bottomed on their failure to investigate Henry’s claims of innocence. The legislature must decide whether the “potential encroachment” on the executive branch’s investigatory function “is worth it.” Accordingly, concerns for separation of powers counsel hesitation before we endorse a Bivens suit in a new context.

And there it is: it’s up to Congress to fix this. Well, we won’t be holding our breath. If there’s anything Congress isn’t in any hurry to do, it’s making it easier to sue federal employees for rights violations. This decision is just another nail in the Bivens coffin. It will only take a few more before the precedent ceases to exist entirely.

Filed Under: 14th amendment, 3rd circuit, 4th amendment, bivens, false arrest

The Third Circuit’s Section 230 Decision In Anderson v. TikTok Is Pure Poppycock.

from the that's-not-how-any-of-this-works dept

Last week, the U.S. Court of Appeals for the Third Circuit concluded, in Anderson v. TikTok, that algorithmic recommendations aren’t protected by Section 230. Because they’re the platforms’ First Amendment-protected expression, the court reasoned, algorithms are the platforms’ “own first-party speech,” and thus fall outside Section 230’s liability shield for the publication of third-party speech.

Of course, a platform’s decision to host a third party’s speech at all is also First Amendment-protected expression. By the Third Circuit’s logic, then, such hosting decisions, too, are a platform’s “own first-party speech” unprotected by Section 230.

We’ve already hit (and not for the last time) the key problem with the Third Circuit’s analysis. “Given … that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms,” the court declared, “it follows that doing so amounts to first-party speech under [Section] 230, too.” No, it does not. Assuming a lack of overlap between First Amendment protection and Section 230 protection is a basic mistake.

Section 230(c)(1) says that a website shall not be “treated as the publisher” of most third-party content it hosts and spreads. Under the ordinary meaning of the word, a “publisher” prepares information for distribution and disseminates it to the public. Under Section 230, therefore, a website is protected from liability for posting, removing, arranging, and otherwise organizing third-party content. In other words, Section 230 protects a website as it fulfills a publisher’s traditional role. And one of Section 230’s stated purposes is to “promote the continued development of the Internet”—so the statute plainly envisions the protection of new, technology-driven publishing tools as well.

The plaintiffs in Anderson are not the first to contend that websites lose Section 230 protection when they use fancy algorithms to make publishing decisions. Several notable court rulings (all of them unceremoniously brushed aside by the Third Circuit, as we shall see) reject the notion that algorithms are special.

The Second Circuit’s 2019 decision in Force v. Facebook is especially instructive. The plaintiffs there argued that “Facebook’s algorithms make … content more ‘visible,’ ‘available,’ and ‘usable.’” They asserted that “Facebook’s algorithms suggest third-party content to users ‘based on what Facebook believes will cause the user to use Facebook as much as possible,’” and that “Facebook intends to ‘influence’ consumers’ responses to that content.” As in Anderson, the plaintiffs insisted that algorithms are a distinct form of speech, belonging to the platform and unprotected by Section 230.

The Second Circuit was unpersuaded. Nothing in the text of Section 230, it observed, suggests that a website “is not the ‘publisher’ of third-party information when it uses tools such as algorithms that are designed to match that information with a consumer’s interests.” In fact, it noted, the use of such tools promotes Congress’s express policy “to promote the continued development of the Internet.”

By “making information more available,” the Second Circuit wrote, Facebook was engaging in “an essential part of traditional publishing.” It was doing what websites have done “on the Internet since its beginning”—“arranging and distributing third-party information” in a manner that “forms ‘connections’ and ‘matches’ among speakers, content, and viewers of content.” It “would turn Section 230(c)(1) upside down,” the court concluded, to hold that Congress intended to revoke Section 230 protection from websites that, whether through algorithms or otherwise, “become especially adept at performing the functions of publishers.” The Second Circuit had no authority, in short, to curtail Section 230 on the ground that by deploying algorithms, Facebook had “fulfill[ed] its role as a publisher” too “vigorously.”

As the Second Circuit recognized, it would be exceedingly difficult, if not impossible, to draw logical lines, rooted in law, around how a website arranges third-party content. What in Section 230 would enable a court to distinguish between content placed in a “for you” box, content that pops up in a newsfeed, content that appears at the top of a homepage, and content that’s permitted to exist in the bowels of a site? Nothing. It’s the wrong question. The question is not how the website serves up the content; it’s what makes the content problematic. When, under Section 230, is third-party content also a website’s first-party content? Only, the Second Circuit explained, when the website “directly and materially contributed to what made the content itself unlawful.” This is the “crucial distinction”—presenting unlawful content (protected) versus creating unlawful content (unprotected).

Perhaps you think the problem of drawing non-arbitrary lines around different forms of presentation could be solved, if only we could get the best and brightest judges working on it? Well, the Supreme Court recently tried its luck, and it failed miserably. To understand the difficulties with excluding algorithmic recommendations from Section 230, all the Third Circuit had to do was meditate on the oral argument in Gonzalez v. Google. It was widely assumed that the justices took that case because at least some of them wanted to carve algorithms out of Section 230. How hard could it be? But once the rubber hit the road, once they had to look at the matter closely, the justices had not the faintest idea how to do that. They threw up their hands, remanding the case without reaching the merits.

The lesson here is that creating an “algorithm” rule would be rash and wrong—not least because it would involve butchering Section 230 itself—and that opinions such as Force v. Facebook are correct. But instead of taking its cues from the Gonzalez non-decision, the Third Circuit looked to the Supreme Court’s newly released decision in Moody v. NetChoice.

Moody confirms (albeit, alas, in dicta) that social media platforms have a First Amendment right to editorial control over their newsfeeds. The right to editorial control is the right to decide what material to host or block or suppress or promote, including by algorithm. These are all expressive choices. But the Third Circuit homed in on the algorithm piece alone. Because Moody declares algorithms a platform’s protected expression, the Third Circuit claims, a platform does not enjoy Section 230 protection when using an algorithm to recommend third-party content.

The Supreme Court couldn’t coherently separate algorithms from other forms of presentation, and the distinguishing feature of the Third Circuit’s decision is that it never even tries to do so. Moody confirms that choosing to host or block third-party content, too, is a platform’s protected expression. Are those choices “first-party speech” unprotected by Section 230? If so—and the Third Circuit’s logic _requires that result_—Section 230(c)(1) is a nullity.

This is nonsense. And it’s lazy nonsense to boot. Having treated _Moody_’s stray lines about algorithms like live hand grenades, the Third Circuit packs up and goes home. Moody doesn’t break new ground; it merely reiterates existing First Amendment principles. Yet the Third Circuit uses Moody as one neat trick to ignore the universe of Section 230 precedent. In a footnote (for some reason, almost all the decision’s analysis appears in footnotes) the court dismisses eight appellate rulings, including Force v. Facebook, that conflict with its ruling. It doesn’t contest the reasoning of these opinions; it just announces that they all “pre-dated [_Moody v._] NetChoice.”

Moody roundly rejects the Fifth Circuit’s (bananas) First Amendment analysis in Paxton v. NetChoice. In that faulty decision, the Fifth Circuit wrote that Section 230 “reflects Congress’s factual determination that Platforms are not ‘publishers,’” and that they “are not ‘speaking’ when they host other people’s speech.” Here again is the basic mistake of seeing the First Amendment and Section 230 as mutually exclusive, rather than mutually reinforcing, mechanisms. The Fifth Circuit conflated not treating a platform as a publisher, for purposes of liability, with a platform’s not being a publisher, for purposes of the First Amendment. In reality, websites that disseminate third-party content both exercise First Amendment-protected editorial control and enjoy Section 230 protection from publisher liability.

The Third Circuit fell into this same mode of woolly thinking. The Fifth Circuit concluded that because the platforms enjoy Section 230 protection, they lack First Amendment rights. Wrong. The Supreme Court having now confirmed that the platforms have First Amendment rights, the Third Circuit concluded that they lack Section 230 protection. Wrong again. Congress could not revoke First Amendment rights wherever Section 230 protection exists, and Section 230 would serve no purpose if it did not apply wherever First Amendment rights exist.

Many on the right think, quite irrationally, that narrowing Section 230 would strike a blow against the bogeyman of online “censorship.” Anderson, meanwhile, involved the shocking death of a ten-year-old girl. (A sign, in the view of one conservative judge on the Anderson panel, that social media platforms are dens of iniquity. For a wild ride, check out his concurring opinion.) So there are distorting factors at play. There are forces—a desire to stick it to Big Tech; the urge to find a remedy in a tragic case—pressing judges to misapply the law. Judges engaging in motivated reasoning is bad in itself. But it is especially alarming here, where judges are waging a frontal assault on the great bulwark of the modern internet. These judges seem oblivious to how much damage their attacks, if successful, are likely to cause. They don’t know what they’re doing.

Corbin Barthold is internet policy counsel at TechFreedom.

Filed Under: 1st amendment, 3rd circuit, anderson v. tiktok, free speech, section 230
Companies: tiktok

Third Circuit’s Section 230 TikTok Ruling Deliberately Ignores Precedent, Defies Logic

from the that's-not-how-any-of-this-works dept

Step aside Fifth Circuit Court of Appeals, there’s a new contender in town for who will give us the most batshit crazy opinions regarding the internet. This week, a panel on the Third Circuit ruled that a lower court was mistaken in dismissing a case against TikTok on Section 230 grounds.

But, in order to do so, the court had to intentionally reject a very long list of prior caselaw on Section 230, misread some Supreme Court precedent, and (trifecta!) misread Section 230 itself. This may be one of the worst Circuit Court opinions I’ve read in a long time. It’s definitely way up the list.

The implications are staggering if this ruling stands. We just talked about some cases in the Ninth Circuit that poke some annoying and worrisome holes in Section 230, but this ruling takes a wrecking ball to 230. It basically upends the entire law.

At issue are the recommendations TikTok offers on its “For You Page” (FYP), which is the algorithmically recommended feed that a user sees. According to the plaintiff, the FYP recommended a “Blackout Challenge” video to a ten-year-old child, who mimicked what was shown and died. This is, of course, horrifying. But who is to blame?

We have some caselaw on this kind of thing even outside of the internet context. In Winter v. GP Putnam’s Sons, it was found that the publisher of an encyclopedia of mushrooms was not liable for “mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information” in the book. The information turned out to be wrong, but the court held that the publisher could not be held liable for those harms because it had no duty to carefully investigate each entry.

In many ways, Section 230 was designed to speed up this analysis in the internet era, by making it explicit that a website publisher has no liability for harms that come from content posted by others, even if the publisher engaged in traditional publishing functions. Indeed, the point of Section 230 was to encourage platforms to engage in traditional publishing functions.

There is a long list of cases that say that Section 230 should apply here. But the panel on the Third Circuit says it can ignore all of those. There’s a very long footnote (footnote 13) that literally stretches across three pages of the ruling listing out all of the cases that say this is wrong:

We recognize that this holding may be in tension with Green v. America Online (AOL), where we held that § 230 immunized an ICS from any liability for the platform’s failure to prevent certain users from “transmit[ing] harmful online messages” to other users. 318 F.3d 465, 468 (3d Cir. 2003). We reached this conclusion on the grounds that § 230 “bar[red] ‘lawsuits seeking to hold a service provider liable for . . . deciding whether to publish, withdraw, postpone, or alter content.’” Id. at 471 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Green, however, did not involve an ICS’s content recommendations via an algorithm and pre-dated NetChoice. Similarly, our holding may depart from the pre-NetChoice views of other circuits. See, e.g., Dyroff v. Ultimate Software Grp., 934 F.3d 1093, 1098 (9th Cir. 2019) (“[R]ecommendations and notifications . . . are not content in and of themselves.”); Force v. Facebook, Inc., 934 F.3d 53, 70 (2d Cir. 2019) (“Merely arranging and displaying others’ content to users . . . through [] algorithms—even if the content is not actively sought by those users—is not enough to hold [a defendant platform] responsible as the developer or creator of that content.” (internal quotation marks and citation omitted)); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir. 2016) (concluding that § 230 immunity applied because the structure and operation of the website, notwithstanding that it effectively aided sex traffickers, reflected editorial choices related to traditional publisher functions); Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014) (adopting Zeran by noting that “traditional editorial functions” are immunized by § 230); Klayman v. Zuckerburg, 753 F.3d 1354, 1359 (D.C. Cir. 2014) (immunizing a platform’s “decision whether to print or retract a given piece of content”); Johnson v. Arden, 614 F.3d 785, 791-92 (8th Cir. 2010) (adopting Zeran); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (rejecting an argument that § 230 immunity was defeated where the allegations went to the platform’s traditional editorial functions).

I may not be a judge (or even a lawyer), but even I might think that if you’re ruling on something and you have to spend a footnote that stretches across three pages listing all the rulings that disagree with you, at some point, you take a step back and ask:

As you might be able to tell from that awful footnote, the Court here seems to think that the ruling in Moody v. NetChoice has basically overturned those rulings and opened up a clean slate. This is… wrong. I mean, there’s no two ways about it. Nothing in Moody says this. But the panel here is somehow convinced that it does?

The reasoning here is absolutely stupid. It’s taking the obviously correct point that the First Amendment protects editorial decision-making, and saying that means that editorial decision-making is “first-party speech.” And then it’s making that argument even dumber. Remember, Section 230 protects an interactive computer service or user from being treated as the publisher (for liability purposes) of third party information. But, according to this very, very, very wrong analysis, algorithmic recommendations are magically “first-party speech” because they’re protected by the First Amendment:

Anderson asserts that TikTok’s algorithm “amalgamat[es] [] third-party videos,” which results in “an expressive product” that “communicates to users . . . that the curated stream of videos will be interesting to them[.]” ECF No. 50 at 5. The Supreme Court’s recent discussion about algorithms, albeit in the First Amendment context, supports this view. In Moody v. NetChoice, LLC, the Court considered whether state laws that “restrict the ability of social media platforms to control whether and how third-party posts are presented to other users” run afoul of the First Amendment. 144 S. Ct. 2383, 2393 (2024). The Court held that a platform’s algorithm that reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants” is the platform’s own “expressive product” and is therefore protected by the First Amendment….

Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms, id. at 2409, it follows that doing so amounts to first-party speech under § 230, too….

This is just flat out wrong. It is based on the false belief that any “expressive product” makes it “first-party speech.” That’s wrong on the law and it’s wrong on the precedent.

It’s a bastardization of an already wrong argument put forth by MAGA fools that Section 230 conflicts with the argument in Moody. The argument, as hinted at by Justices Thomas and Gorsuch, is that because NetChoice argues (correctly) that its editorial decision-making is protected by the First Amendment, it’s somehow in conflict with the idea that they have no legal liability for third-party speech.

But that’s only in conflict if you can’t read and/or don’t understand the First Amendment and Section 230 and how they interact. The First Amendment still protects any editorial actions taken by a platform. All Section 230 does is say that it can’t face liability for third party speech, even if it engaged in publishing that speech. The two things are in perfect harmony. Except to these judges in the Third Circuit.

The Supreme Court at no point says that editorial actions turn into first-party speech because they are protected by the First Amendment, contrary to what they say here. That’s never been true, as even the mushroom encyclopedia example shows above.

Indeed, reading Section 230 in this manner wipes out Section 230. It makes it the opposite of what the law was intended to do. Remember, the law was written in response to the ruling in Stratton Oakmont v. Prodigy, where a local judge found Prodigy liable for content it didn’t moderate, because it did moderate some content. As then Reps. Chris Cox and Ron Wyden recognized, that would encourage no moderation at all, which made no sense. So they passed 230 to overturn that decision and make it so that internet services could feel free to engage in all sorts of publishing activity without facing liability for the underlying content when that content was provided by a third party.

But here, the Third Circuit has flipped that on its head and said that the second you engage in First Amendment-protected publishing activity around content (such as recommending it), you lose Section 230 protections because the content becomes first-party content.

That’s… the same thing that the court ruled in Stratton Oakmont, and which 230 overturned. It’s beyond ridiculous for the Court to say that Section 230 basically enshrined Stratton Oakmont, and it’s only now realizing that 28 years after the law passed.

And yet, that seems to be the conclusion of the panel.

Incredibly, Judge Paul Matey (a FedSoc favorite Trump appointee) has a concurrence/dissent where he would go even further in destroying Section 230. He falsely claims that 230 only applies to “hosting” content, not recommending it. This is literally wrong. He also falsely claims that Section 230 is a form of a “common carriage regulation” which it is not.

So he argues that the first Section 230 case, the Fourth Circuit’s important Zeran ruling, was decided incorrectly. The Zeran ruling established that Section 230 protected internet services from all kinds of liability for third-party content. Zeran has been adopted by most other circuits (as noted in that footnote of “all the cases we’re going to ignore” above). So in Judge Matey’s world, he would roll back Section 230 to only protect hosting of content and that’s it.

But that’s not what the authors of the law meant (they’ve told us, repeatedly, that the Zeran ruling was correct).

Either way, every part of this ruling is bad. It basically overturns Section 230 for an awful lot of publisher activity. I would imagine (hope?) that TikTok will request an en banc rehearing across all judges on the circuit and that the entire Third Circuit agrees to do so. At the very least, that would provide a chance for amici to explain how utterly backwards and confused this ruling is.

If not, then you have to think the Supreme Court might take it up, given that (1) they still seem to be itching for direct Section 230 cases and (2) this ruling basically calls out in that one footnote that it’s going to disagree with most other Circuits.

Filed Under: 1st amendment, 1st party speech, 3rd circuit, 3rd party speech, algorithms, fyp, liability, recommendations, section 230
Companies: tiktok

Third Circuit Says First Amendment Protects Cops Who Want To Be Racist Assholes Online

from the but-it-won't-stop-people-from-thinking-you're-racist-assholes dept

The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees.

The added wrinkle is the First Amendment limitations placed on government employees. Most speech is protected, but speech made while acting as a government employee via their official duties is less protected than speech made off the clock as just a regular, non-government person.

All of that factors into this recent decision [PDF] by the Third Circuit Appeals Court. (h/t Eric Goldman)

At the center of this lawsuit are a bunch of Philadelphia cops who decided to be terrible online. In 2019, accountability activists Plain View Project outed several disturbing social media posts linked to these officers (as well as those made by officers from other major police departments). In response, the Philadelphia police commissioner stated that 13 officers would be fired for their posts, which contained invective targeting several protected groups.

The posts were described by the District Court as having “spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more.” However, the posts also “ridiculed and belittled members from the LGTBQ community, reportedly using individuals who are transgender as punch lines in their jokes, or worse, threatened violence against them… African Americans, Muslims, Mexicans, and foreign refugees were not spared as Plaintiffs played racist bingo, mocking as many ethnic or religious groups as possible.”

In short, garbage people saying garbage things online. But these people were cops, who are expected to hold themselves to a higher standard. Their employer, the Philadelphia police department, obviously felt these posts went too far. 72 officers were investigated. The twelve officers bringing this lawsuit were punished to some extent for violating the PPD’s social media policy, which said employees were prohibited from using ethnic slurs, personal insults, obscenities, or engaging in “harassment, defamation, or fraud.”

This governed use of social media while in uniform and on the clock. The policy also noted that “personal use” of social media services by employees would be scrutinized to ensure these rules were followed.

The 12 disciplined officers sued, claiming the policy was unconstitutional and that their discipline was illegal First Amendment retaliation.

The Appeals Court (mostly) agrees.

The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be bitter medicine — particularly when prescribed in defense of social media’s more antisocial viewpoints.

[…]

This Court does not condone the Appellant officers’ use of social media to mock, disparage, and threaten the very communities that they are sworn to protect. While we do not opine on the merits of their suit, our rules of procedure dictate that the Appellant officers have stated a claim of First Amendment retaliation at this juncture.

That’s the thing about the First Amendment. In order for it to provide protection for the best of us, it also has to protect the worst of us. People who never utter anything hateful rarely need to worry about the government stepping on their free speech rights. Horrific criminals sometimes generate the best Fourth and Fifth Amendment case law. Bigoted assholes are, unfortunately, necessary to the establishment of solid First Amendment precedent.

But it won’t protect these officers from further criticism and condemnation from the general public. So, while this lawsuit can proceed, there’s no reason we can’t use this decision to link these officers’ names to their hateful social media posts. All of the following are taken directly from the decision:

Officer Christian Fencio (terminated):

In a response to a 2015 shared post describing refugees rejecting a food delivery because it bore a Red Cross logo, Fencio commented, “Good, let them starve. I hate every last one of them.” In a 2013 post, Fencio commented, “Should have shot him,” on an article detailing a theft in Missouri.

Officer Thomas Young (suspended, allowed to retire in lieu of termination):

In a post from 2015, Young commented on a shared YouTube link titled, “Migrant Workers are Thrown Over Motorway Barrier by Police.” Young replied, “They should gather them up and send them back where they came from.”

Officer Thomas Gack (restricted duty, termination):

In one 2015 post, Gack shared a meme depicting a box of shotgun shells edited to read, “ISIS LOAD, 00 BUCK & BACON BITS.” […] In another post, Gack mocked female politicians. One of Gack’s 2013 posts highlighted in Plain View reflects the comment “Ha ha ha” in response to another post mocking families with incarcerated fathers.

Officer Edward McCammitt (suspended, retired):

In 2017, McCammitt shared a picture of an officer spraying a protester with mace with the caption, “PARTICIPATION TROPHIES… NOW IN LIQUID FORM!” In a 2017 post, he shared a picture of a bumper detached from a vehicle, with the caption, “THIS BUMPER WILL TAKE AN ANIMAL HIT AT 65 MPH… OR A PROTESTER, WHATEVER.” One of McCammitt’s posts from 2015 says, “Like and share… If you support the Confederate flag.”

Officer Tanya Grandizo (placed on restricted duty, still employed by the PPD):

[S]he reposted a list of all the reasons why Muslims cannot be “good American[s],” which concluded, “Therefore, after much study and deliberation, perhaps we should be suspicious of ALL MUSLIMS in this country,” because they “cannot and will not integrate into the great melting pot of America.”

Officer Anthony Anzideo (restricted duty, still employed by the PPD):

Anzideo shared a “USATODAY.COM” news article from 2015 reading “9 Dead in shooting at black church in Charleston, S.C.,” to which Anzideo added the caption, “This is horrible..Hope they track this POS down and take him out.” In 2016, in response to a news article he posted from “6ABC.COM” titled “Woman Shot and Killed in Lower Salford; 2nd Victim Shot in Lansdale,” Anzideo responded “POS…take him out.”

Officer Anthony Acquaviva (placed on Giglio List, terminated):

In 2015, Acquaviva shared a post on Facebook from a fellow Officer in this action, Joseph Przepiorka, depicting a man with a beard overlaid with the text reading, “ALL I WANT TO DO IS MOVE TO YOUR COUNTRY, RAPE YOUR WOMEN, BOMB YOUR BUSES, RIOT IN YOUR STREETS AND DEMAND THAT YOU ACCEPT MY RELIGION. WHY CAN’T YOU BE MORE TOLERANT?” In 2015, Acquaviva shared another post with the graphic of the United States overlaid with the text “FUCK OFF WE’RE FULL.” In a 2016 post, Acquaviva shared an image of generic police officers with the text, “SHARE IF YOU THINK IT SHOULD BE LEGAL . . . TO THROAT PUNCH A CIVILIAN THAT SPITS ON A MAN IN UNIFORM.”

Officer Kristine Amato (suspended 30 days, still employed by the PPD):

Responding to a 2017 post by Appellant Przepiorka about an article titled “YouTube fight video shows what not to do when the cops come,” Amato commented “She’s a racist reporter… plain and simple…. she not only took a swing at the cop but also continued to resist and strike the officer…” In 2017, Amato responded to a video shared by another titled “Tulsa Officer Uses Car To Run Down Armed Suspect,” with the comment, “Awesome.. hopefully the wheels went over her scumbag ass.”

Officer Joseph Przepiorka (suspended, retired):

One of Przepiorka’s posts from 2017 depicted a skeleton draped in the American flag and touting an automatic weapon with the words, “DEATH TO ISLAM” at the top. […] Przepiorka shared a picture of professional wrestler Steve Austin emblazoned with the confederate flag and the text, “Give Me A Hell Yeah FOR TRUMP.” In another post, he shared a picture of a white cap embroidered with the words, “MAKE AMERICA NOT A BUNCH OF CUNTS OFFENDED BY EVERYTHING AGAIN.”

Officer William Bowdren (placed on Giglio List, removed from Gun Violence Task Force, still employed by the PPD):

[B]owdren commented, “Vroom Vroom” on an article […] titled “Tennessee Passes Bill Allowing People To Hit Protestors Blocking Roads.” In 2017, Bowdren shared an article from “6ABC.COM” titled “Mother and boyfriend both charged in teen’s murder,” to which he added the caption, “These animals need to be tortured and mutilated in a public square.”

Officer Raphael McGough (received letter of reprimand, still employed by the PPD):

In 2017, McGough shared an article titled, “UPDATING: In Progress — Antifa Marching To Confront Patriots Decide To Take On Police,” on which McGough commented, “[a]nd we know who the liberal scum are rooting for.” In another post, McGough commented, “You reap what you sow,” in response to an article on BREITBART.COM with the title “Baltimore Residents Blaming Murder Increase on Lack of Police After BLM Protestors Demanded Pullback.”

Officer Francis Sheridan (threatened with a reprimand, still employed by the PPD):

Sheridan responded to another’s shared link bearing the text “CHILD RAPIST RAPED” and a graphic photo with “Thank God for Prison Justice!” In the 2017 comment, Sheridan responded to a news link captioned “A teenager arrested for raping a baby will avoid prison,” with the comment, “If this is a true story, these assholes need to be exterminated!”

So, it’s mostly just the sort of thing you expect to see on Facebook. Except it’s cops, rather than just regular people. This speech is protected, even if it violates the ethics policies of the police department. As the court sees it, there’s enough of a whiff of retaliation to allow the lawsuit to continue. It doesn’t necessarily mean these cops (current and former) are on their way to victory. It just means the First Amendment likely protects this sort of commentary (as awful as it is), even when it’s made by people who should definitely know better.

Filed Under: 1st amendment, 3rd circuit, bigotry, philadelphia pd, police, social media

Appeals Court Awards Half A Win To Professor Wrongfully Arrested For Sharing ‘Secret’ Tech With Chinese Entities

from the we-admit-we're-wrong-but-you-still-can't-sue-us dept

Being abnormally suspicious of anything Chinese isn’t new. There’s a wave of hysteria-based lawmaking happening right now involving TikTok, but deciding Chinese nationals and Chinese entities are inherently suspicious has been part of this nation’s cultural fabric since the construction of railroads back in the mid-19th century.

That supposition that foreigners — especially the exotic-looking ones — are trying to undermine our nation is almost as old as this nation itself. This case only dates back to May 2015 — the day the Chair of the Temple University Physics Department, Xiaoxing Xi — was arrested at gunpoint by FBI agents.

The FBI agents held Xi and his family (including his daughters) at gunpoint while they ransacked his house. Xi was interrogated for two hours and subjected to DNA sampling and fingerprinting. Once this was completed, the FBI finally got around to telling Xi why it had arrested him. According to the FBI, Xi had been indicted for four counts of wire fraud for allegedly passing on information about a “pocket heater” (not the one you’re thinking of, Midwesterners) to Chinese entities.

After a bit of actual due diligence, DOJ prosecutors realized Xi had never discussed this supposedly “revolutionary” bit of superconductor tech with anyone in China and dropped the charges against him. (Albeit, without prejudice, which is kind of shitty.)

Instead, his emails had only discussed his own invention, which wasn’t related to the “pocket heater” the FBI agent handling the case pretended the case was about. Well, “pretending” is perhaps too kind. FBI agent Andrew Haugen — the lead defendant in this lawsuit — lied about Xi’s communications. We know he lied because he had already been informed of the truth and decided to move forward with a raid of Xi’s house anyway — a raid predicated on the lies Agent Haugen told the court in order to secure the search warrant.

This is from the Third Circuit Court of Appeals decision [PDF]:

In the course of that investigation, as set forth in the Complaint, Haugen had interviewed the inventor of the pocket heater and learned that Xi’s emails were “not related” to the STI pocket heater, but rather to a different process that Xi himself had invented. Nevertheless, according to the Complaint, Haugen averred in his affidavits, reports, and other communications with prosecutors that those emails did concern the pocket heater.

Dropping the charges freed Xi from prosecution but it didn’t undo the damage to his life. Thanks to widespread news coverage of this bogus bust, Xi was suspended by Temple University and barred from participating in any research or communication with his students. Special Agent Andrew Haugen, however, suffered no consequences at all for his actions.

That’s what Xi is hoping to change. But the Appeals Court only allows one cause of action to move forward, claiming (like almost every court does, thanks to Supreme Court precedent) that the agent can’t be sued for rights violations under Bivens because (altogether now) this is a “new context.” As the Third Circuit notes, the Supreme Court has bound the hands of every court in the land:

In the fifty-two years since Bivens was decided, however, the Supreme Court has pulled back the reins to what appears to be a full stop and no farther.

In other words, if your rights have been violated by a federal agent, there is roughly a 0.0001% you’ll be able to successfully bring a Bivens claim. For everyone else, there’s whatever else might still have a remedy the Supreme Court hasn’t managed to destroy yet.

Making this a bit worse, the Third Circuit also says it would not have granted a Bivens claim to Xi even if the Supreme Court hadn’t all but eliminated that option… because national security.

[A]s a practical matter, counterintelligence officials, like Border Patrol agents, are on the front lines of responding to national security threats where the prospect of damages liability could cause them to “second-guess difficult but necessary decisions” with significant consequences for public safety and foreign policy.

But Xi still has one option left: the Federal Tort Claims Act, which allows the government to be sued for the negligence of its employees. That claim can proceed.

The Appeals Court first addresses the lower court opinion, which said the FTCA claim was valid but that qualified immunity should be awarded to Agent Haugen. The Appeals Court says this gets the law wrong. There’s no qualified immunity element in the FTCA, which waives sovereign immunity for government agencies to allow citizens whose rights were violated to bring a lawsuit against the federal government.

Given these factors, Agent Haugen’s misconduct cannot be immunized. And it’s clear from Xi’s allegations that there’s more than enough to allow this lawsuit to proceed:

Xi has met that pleading standard here because the Complaint alleged at least seven discrete instances of Haugen intentionally, knowingly, and/or recklessly providing false information that led to Xi’s prosecution. It alleged, for example, that before charges were filed, the inventor of the pocket heater informed Haugen that the emails in question described an “entirely different” device from the pocket heater—one that Xi himself had invented; and that the pocket heater technology was not “revolutionary,” but “widely known.” It also alleged that Haugen accused Xi of “a scheme to obtain the pocket heater technology” at a point in time when, as Haugen knew or recklessly disregarded, that technology did not yet exist, and that Haugen knew or recklessly disregarded that Xi never sent samples or test results from the pocket heater to colleagues in China, but only engaged with them in normal academic collaboration. Such detailed allegations are hardly the “naked assertion[s] devoid of further factual enhancement” that would justify dismissal. George v. Rehiel, 738 F.3d 562, 581 (3d Cir. 2013)

It’s a very limited win. And even if this goes Xi’s way in the lower court, the FTCA claim limits him to monetary damages, which means he’ll only be able to get back what he can prove the FBI cost him. Reputational damage won’t be a factor, which means the FBI and the agent that basically fabricated claims against Xi will likely walk away from this owing Xi almost nothing for baselessly attempting to destroy his life.

Filed Under: 3rd circuit, bivens claim, civil rights, espionage, fbi, federal tort claims act, ftca, wire fraud, xi xiaoxing

Court: No Immunity For Cops Who Waited Months To Test Heart Shaped Candy They Claimed Were Drugs

from the nothing-says-I-love-you-like-a-fistful-of-drugs dept

We know cops often can’t differentiate innocuous substances from actual drugs. These from-the-hip determinations are just the manufacturing of reasonable suspicion and probable cause, something that allows cops to perform the searches and seizures they were planning to do anyway.

Whether it’s the “odor of marijuana” (something that can rarely be objectively examined in court) or shitty, cheap drug tests that think bird poop/cotton candy/drywall dust are illegal substances, cops almost always find a way to start searching and seizing. Then there are drug dogs, which are just as prone to respond to their handler’s prompts as to the actual odor of drugs.

This is all supposed to be backstopped by actual lab tests, which will determine whether or not the “training and experience” hunch was on the money. But even the drug labs are often broken. When freedom is on the line, it often appears law enforcement officers consider extended stays in local jails to just be the unfortunate side effect of the existence of the criminal element. If you were truly innocent, you wouldn’t have been pulled over… or whatever.

Every so often, a court rights the wrongs the never-ending War on Drugs has created. The Third Circuit Court of Appeals [PDF] doesn’t see anything warranting reversal (at least not at this point) in a case where cops pretended something was drugs and prosecutors pretended to not know any better for months after finding out what the cops seized wasn’t drugs.

Fernando Saint-Jean, a Haitian-born US citizen, was pulled over by a Palisades, NJ police officer while returning from a family birthday party. The officer claimed the window tint was too dark and Saint-Jean was driving too slowly. Rather than address the alleged moving violations, Officer Michael Holland, along with the later-arriving Officer Fabricio Salazar, ordered Saint-Jean and his uncle out of the car. After a third officer arrived, Officer Holland talked Saint-Jean into consenting to a search of his vehicle.

The officers dug around for a bit before retrieving this supposed contraband.

In searching a storage compartment between the two front seats, the officers found three small, sealable plastic bags containing several heart-shaped objects. Those objects had the appearance of Valentine’s Day candies, but Valentine’s Day was two-and-a-half months earlier, and the officers suspected that the items were actually controlled substances – MDMA or ecstasy.

Apparently it’s suspicious to not immediately consume any and all holiday-related candy one might obtain. Who knows what time period is considered acceptable for candy consumption, but this fell outside the parameters set by these officers’ extensive training on holiday candy possession timeframes. Saint-Jean explained a co-worker had given him the candy and even offered to put the officers in touch with her. They refused to consider the most reasonable explanation for the candy’s existence. They handcuffed Saint-Jean and took him to the police station.

This all could have been cleared up fairly quickly but the officers weren’t interested in clearing things up.

_The intake process at the police station included photographing and fingerprinting Saint-Jean; it did not involve administering any tests on the small, heart-shaped objects. Despite not testing the suspected drugs or calling Saint-Jean’s coworker, two officers, Holland and Richard Dey, initiated legal proceedings against Saint-Jean. Those included a traffic summons and a criminal summons for possessing a controlled substance_…

The drug charge didn’t stick. Before his initial appearance, prosecutors downgraded the charge to “disorderly person” (which still makes no sense given his cooperation with the candy-seeking officers). Two months after his initial appearance, the candy was tested by a New Jersey forensic lab. The final determination? It was candy.

Even though prosecutors received the report clearing Saint-Jean of alleged drug possession, they didn’t drop the final charge against him until four months later.

The lower court granted absolute immunity to the prosecutors. However, it refused to extend immunity to the officers, both under New Jersey law as well as under federal law. The lower court also gave Saint-Jean a chance to amend his complaint to address deficiencies in his original lawsuit. Saint-Jean did so. While this was still under examination by the lower court, the officers appealed to the Third Circuit, seeking to overturn the lower court’s refusal to extend immunity.

You’re jumping the gun, says the Third Circuit — something that appears to be the officers’ standard m.o. There’s nothing to be appealed yet because the new complaint still needs a response from the officers, even if they plan to use pretty much the same arguments in hopes of getting the case dismissed.

[E]ven if this Court were to rule on qualified immunity now, the District Court would still need to compare the original complaint with the amended complaint and analyze whether the appellate ruling would apply after Saint-Jean’s amendments. Due to the need for that subsequent comparison of the pleadings, immediate appellate review of the order would not conclusively determine the officers’ entitlement to qualified immunity.

The officers will have to wait until the lower court rules before they can once again claim any reasonable officer that ignored the pretext of a stop to coerce a person into submitting to a search of their car — a search that only produced bags of candy the officers couldn’t even be bothered to submit to a cheap field test — could not possibly know that this extended string of officious, freedom-threatening bullshit might violate Saint-Jean’s Constitutional rights.

Good luck with that. The traffic stop occurred three years after the Supreme Court ruled that extending a traffic stop without reasonable suspicion violates the Fourth Amendment. And there doesn’t seem to be anything on the record that suggests the officer that pulled over Saint-Jean had any reasonable suspicion he was carrying contraband in his car. He was compliant, provided a reasonable explanation for his travels, and — on top of everything else — submitted to a search. All of that is going to come into play when this is revisited and it’s hard to believe the extension of this stop was justified by anything Saint-Jean did. But never count a court out when it comes to QI. Sometimes they’re able to snatch cop victories from apparent defeat.

Filed Under: 3rd circuit, candy, drugs, evidence, fabricio salazar, fernando saint-jean, michael holland, new jersey, palisades, police, qualified immunity

Appeals Court Reminds Cops They Can’t Create Their Own Exigency To Justify A Warrantless Search

from the small-Constitutional-violations-are-still-violations dept

A case involving a DUI stop that somehow morphed into the search of a passenger has earned a couple of cops a rebuke from the Third Circuit Court of Appeals and a couple of handy reminders in a precedential decision that will make it that much tougher for law enforcement officers in this circuit to get away with stuff like this in the future.

Here’s how the stop unfolded, as recounted in the Third Circuit decision [PDF]:

Around 2:00 a.m. on February 23, 2019, Philadelphia Police Officers Lance Cannon and Daniel Gonzalez were patrolling North Philadelphia’s 35th District, an area both officers described as “very violent.” They saw a two-door pickup truck roll through a stop sign and fail to signal a turn. After they pulled the truck over, Officer Cannon approached the truck on the driver’s side and Gonzalez approached on the passenger’s side. Three people were in the truck: a driver, a front seat passenger, and, in the backseat, Jamel Hurtt.

The driver and front seat passenger both rolled down their windows. As Cannon collected the license, registration, and keys from the driver, the officers smelled alcohol. The front seat passenger was heavily intoxicated and voluble, and Hurtt, from behind, attempted to calm and quiet him. When Cannon asked the intoxicated passenger for identification, Hurtt volunteered his as well. The officers asked the driver to step out for a sobriety test. He complied and left the door open as he got out of the truck. Uninvited and without apparent justification, Cannon then “physically [went] into [the truck], partially put[ting his] body into the cabin of the truck” through the open door. He eventually climbed further into the truck, placing both knees on the driver’s seat. During the subsequent suppression hearing, he explained that he did so for the purpose of “engag[ing]” with the passengers.

It’s that last bit that turned this from a routine traffic stop into a couple of rights violations. Those rights violations led to the discovery of a gun the back seat passenger had tucked in his waistband. Those criminal charges led to a suppression hearing which led to this appeal… and a reminder that traffic stops are governed by the Supreme Court’s Rodriguez decision, which limits how much unrelated stuff cops can do while addressing the matter at hand.

In this case, the matter at hand was the supposedly drunken driver. But the field sobriety test showed the driver was under the legal limit. While one officer was performing the duties related to the stop, the other officer was ordering passengers out of the car and entering the vehicle without consent. The driver (despite having a suspended license) and the drunk passenger were allowed to drive away. Hurtt, who had been patted down by Officer Cannon (the officer who decided he needed to enter the vehicle while the other officer was actually doing traffic stop stuff), was arrested.

The court reminds Officer Cannon that the Supreme Court’s ruling says officers must remain “on-mission.” If other suspicion develops during the course of this, officers can extend the investigation. What they absolutely can’t do is put themselves in danger to create a situation where further law enforcement intrusion is necessary.

Rodriguez reasoned that “‘safety precautions taken in order to facilitate’ investigation of other crimes are not justified as part of a routine traffic stop.” Therefore, an officer cannot create a safety concern while off-mission and then rely upon that concern to justify a detour from the basic mission of the traffic stop. The limitations of the Fourth Amendment simply do not tolerate intrusions stemming from a detour from a lawful inquiry that is justified only by an exigency which police themselves have created.

The court notes that the stop occurring in an alleged “high crime area” doesn’t change the constitutional equation. What changed this from a good stop to a bad stop was the officer’s decision to enter the stopped vehicle, which resulted in an unconstitutional delay because it took the other officer “off mission.”

It is uncontested that the initial “mission” of the traffic stop was the DUI investigation of the driver of the truck. While Gonzalez conducted the on-mission field sobriety test, Cannon entered the truck and kneeled on the front seat, putting himself in a very vulnerable position. Consequently, Gonzalez had to interrupt—indeed he stopped—his attempt to determine the sobriety of the driver for the purpose of ensuring Cannon’s safety. At that point, neither officer had reasonable suspicion to search Hurtt. Without reasonable suspicion, an inquiry resulting in an extension of the traffic stop is unlawful if not related to the mission (i.e., offmission).

The government argued this was a minor interruption, but the Appeals Court reiterates the findings of the Supreme Court decision: it’s not the length of the violation that matters. It’s that the violation occurred.

Moreover, as should be obvious from our discussion, we are not persuaded by the government’s argument that the Fourth Amendment intrusion resulting from Gonzalez going off-mission was permissible because the off-mission conduct was de minimis. We need only address this argument briefly as Rodriguez clearly forecloses it. In Rodriguez, the Court held that even de minimis extensions of a traffic stop for “unrelated inquiries,” such as checking on Cannon’s off-mission activity, are unlawful.

In conclusion, Hurtt’s rights were violated:

Here, Officers Cannon and Gonzalez did what Rodriguez prohibits. Officer Cannon created a safety concern while off-mission from the purpose of the original traffic stop and thereby prolonged Hurtt’s detention. Since the disputed evidence was only uncovered after the officers went off-mission, the officers wrongly extended the traffic stop and violated Hurtt’s Fourth Amendment right to be free from unreasonable searches and seizures.

That reverses the trial court’s refusal to suppress the evidence. And with that evidence now gone, the conviction is vacated. Rights are rights. Violating them quickly doesn’t make them any less violated.

Filed Under: 3rd circuit, 4th amendment, daniel gonzalez, exigent circumstances, jamel hurtt, lance cannon, philadelphia, warrantless search

Court Tells Cops Who Got A Man Wrongly Imprisoned For 25 Years That Of Course Framing People For Crimes Is A Rights Violation

from the just-wrecking-up-people's-lives-and-walking-away-from-it dept

There’s a constitutional right not to be framed by cops for a crime you didn’t commit. This shouldn’t even need to be argued in court once, much less twice. But “framed by cops” is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.

After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.

Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis’ lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they’re not going to be able to walk away from this one.

The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there’s a lot to take in here.

First, Dennis alleges that the detectives concealed information about other individuals, who had confessed their involvement with the murder or who knew who was involved, and that the detectives coerced/concealed certain other witnesses. Specifically, Dennis alleges that the detectives never followed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of her murder. Ms. Howard originally told the detectives that she never saw the assailants but later told her aunt and uncle that she recognized the assailants from Olney High School, a school that Dennis had never attended. Howard’s aunt and uncle informed the detectives about her statement; it was also corroborated by the victim’s aunt. This information, which was recorded in the detectives’ activity logs, was concealed from Dennis for ten years.

In addition, Dennis alleges that several days after the murder, Montgomery County law enforcement advised the Philadelphia Police Department that an inmate in their County Prison spoke with a man who confessed his involvement in Williams’s murder. A signed statement from the inmate included details about all three men involved in the murder and identified the source of the information. However, defense trial counsel never received any materials relating to the investigation of these three individuals; the information was only revealed 10 years later during Post Conviction Relief Act (PCRA) discovery.

Second, Dennis alleges that the detectives fabricated evidence to secure his conviction. Specifically, Dennis alleges that the detectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further alleges that Detective Jastrzembski falsely testified that the clothing was found at Dennis’s residence but later “disappeared” from police headquarters prior to trial…

Third, Dennis alleges that the detectives concealed evidence that would have supported his alibi. Specifically, Dennis’s alibi that he was elsewhere at the time of the murder would have been corroborated by a witness’s time-stamped welfare receipt. When questioned by the detectives, the witness based her time estimates on the receipt’s military-style timestamp of 13:03 (1:03 PM), which she mistook to mean 3:03 PM. The detectives did not correct the witness when she misread the receipt’s military-style timestamp while they were interviewing her; instead, they took the only copy of the receipt and never shared it with Dennis or the prosecutors…

Dennis also alleges that only four of the nine eyewitnesses identified by Philadelphia Police had selected him from the lineup; three of those four testified for the Commonwealth at Dennis’s trial. After learning this information, Dennis’s counsel requested a new lineup with all nine eyewitnesses. The new lineup never occurred.

The detectives argued that even if they were in the wrong, they were not unreasonably wrong and could not have possibly known from court precedent that hiding information from accused criminals and framing them for a murder was a violation of his rights.

Wrong, says the Third Circuit. It’s not even a close call. There’s plenty of precedent and it dates back decades — long before the detectives’ actions in 1992.

[C]iting McDonough v. Smith, the detectives contend that a fabrication of evidence claim has been recognized under the Fourteenth Amendment only where the government officer involved in fabricating evidence was a prosecuting attorney. Not so. In Halsey v. Pfeiffer, we concluded that it was axiomatic that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Halsey involved an evidence fabrication claim under the Fourteenth Amendment brought against police officers. We emphasized that the Supreme Court decades ago had established that the Constitution forbids those tasked with upholding the law from knowingly using falsified evidence to secure a criminal conviction.

[…]

[A] case that is directly on point is not required so long as the precedent placed the constitutional question beyond debate. Halsey did so, recognizing prior precedent that held the fabrication of evidence by law enforcement officers violates the Fourteenth Amendment and that such a right had been established since at least 1985.

The next argument by the detectives was also off by several decades.

[T]urning to Dennis’s deliberate deception claim, the detectives contend that this claim is based on the right not to be framed by law enforcement agents, which is too broadly worded and was not established until 1995, when the Supreme Court decided Kyles v. Whitley.

The right not to be convicted on perjured testimony used by prosecutors at trial has been clearly established by the Supreme Court since at least 1935 in Mooney v. Holohan. Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Court extended this right by recognizing as a due process violation the conviction of a defendant through perjured testimony and the deliberate suppression of evidence favorable to the accused.

Even if this precedent did not exist, the court says the due process violations are so blindingly obvious that there’s no plausible excuse for the detectives’ actions.

We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.

That’s what qualified immunity has done to the judicial system. The Supreme Court’s alteration of the contours of the doctrine it created has made it more difficult for lower courts to address the rights violations, shifting focus to judicial precedent instead. Fortunately, there’s plenty of it here. But more than that, it’s good to see a court tell officers attempting to raise their qualified immunity shields that the stuff they did was so obviously wrong they’d still be denied immunity even if there wasn’t any precedent to rely on. That needs to happen more often.

Filed Under: 3rd circuit, due process, framing people, frank jastrzembski, james dennis, lying cops, manuel santiago, police, qualified immunity, wrongful conviction

Prosecutor Who Used Bite Mark Analysis Even The Analyst Called 'Junk Science' Can Be Sued For Wrongful Jailing Of Innocent Woman

from the mouthful-of-garbage dept

A lot of stuff that looks like science but hasn’t actually been subjected to the rigors of the scientific process has been used by the government to wrongly deprive people of their freedom. As time moves forward, more and more of the forensic science used by law enforcement has been exposed as junk — complicated-looking mumbo-jumbo that should have been laughed out of the crime lab years ago.

Tire marks, bite marks, hair analysis… even the DNA “gold standard” has come under fire. If it’s not the questionable lab processes, it’s the testimony of government expert witnesses who routinely overstated the certainty of their findings.

Bite mark analysis has long been considered junk science. But for a far longer period, it was considered good science — a tool to be used to solve crimes and lock up perps. This case, handled by the Third Circuit Court of Appeals, contains an anomaly: the bite mark expert who helped wrongly convict a woman of murder — taking away eleven years of her life — actually stated on record that bite mark analysis is junk science.

This case starts with some DNA testing. Supposedly, this is as scientific as it gets. But the prosecutor appeared to have wanted to pin this crime on Crystal Dawn Weimer. So investigators chose to ignore what the DNA evidence told them. Investigating the murder of Curtis Haith, who had been beaten and shot in the face, investigators started talking to party guests who had been at Haith’s apartment the night before. They zeroed in on Weimer even when available evidence seemed to point elsewhere.

From the decision [PDF]:

When officers arrived at her house, Weimer was still dressed in the clothes she had been wearing the night before. She had minor injuries to her face and foot, and officers observed what looked like mud and blood on her clothes. Weimer told officers that she, Haith, and others had attended a party the night before and that she had given Haith a ride from that party and dropped him off at another party. She then spent the rest of the night at the housing community where her mother and sisters lived. Her cousin, sisters, and then-boyfriend Michael Gibson confirmed her story. Weimer and Gibson also told officers that Weimer injured her foot when they were “horseplaying” a few days earlier. App. 87 ¶ 31. And Weimer said that the blood on her shirt and the injury to her eye were caused by a fight with Gibson. DNA testing later confirmed that the blood on Weimer’s clothes belonged to Gibson, and none of the DNA samples collected from the crime scene matched Weimer—in fact, the samples suggested a male DNA profile.

Almost two years later, an ex-boyfriend of Weimer’s (Thomas Beal) told investigators that she had shot Haith and told him that the blood on her clothes came from the victim. Of course, DNA evidence had already ruled this out, which should have made this witness’ statement a bit more suspect. But investigators went back over the photographs taken at the scene and found something they could possibly use to tie Weimer to a crime DNA evidence heavily suggested she hadn’t committed. The first attempt to implicate Weimer failed.

When reviewing Haith’s autopsy photos, a state investigator saw what she believed to be a bite mark on Haith’s hand. A Fayette County dentist analyzed the injury. The dentist first concluded that Gibson bit Haith, but after examining teeth impressions for Weimer, she reported she could not identify which set of teeth caused the mark.

The investigator sought a second opinion and got the one she wanted.

A bite-mark expert then reviewed Beal’s statement, photos of the injury to Haith’s hand, and teeth impressions from Gibson and Weimer. He concluded the bite mark matched Weimer.

The investigation continued. This ended up raising questions about the origin of this bite mark. Some evidence suggested the bite could have taken place hours or days before the murder. The prosecutor went back to the “expert” and, conveniently, secured a revision that turned Weimer back into the prime suspect.

Without reviewing additional evidence, he determined the bite occurred seven to ten minutes before Haith’s death.

The prosecutor went back to the state’s key witness — the ex-boyfriend who was already wrong about the blood on Weimer’s clothes. His story changed. The witness claimed “a black man named Lonnie” had helped Weimer with the murder. But this “Lonnie” had been in jail at the time the murder took place, further distancing the state’s key witness from anything resembling the truth. Somehow this failed to dissuade the state from relying on this very sketchy testimony. Adding this questionable testimony to other questionable testimony from a jailhouse informant — one who claimed the state’s favorite witness was involved in the murder — prosecutors went after Weimer.

The case fell apart immediately. Weimer’s ex-boyfriend recanted his story on the stand, claiming a police officer “kind of like coaxed me along” when preparing his statement. The state remained immune from dissuasion and took another swing at Weimer after the first trial had ended in a dismissal of all charges. The second time around it worked. Weimer was convicted of third-degree murder and conspiracy to commit murder.

Nine years later, Weimer had her charges vacated by a judge who found enough evidence to suggest she had been wrongly incarcerated and imprisoned. A whole bunch more evidence came to light during her retrial. That’s where the state’s bite mark “expert” performed his own Perry Mason move.

The bite-mark expert also disavowed his trial testimony, stating that his opinion that the bite mark was Weimer’s was based on “junk science.”

Also uncovered were letters from jailhouse informants that showed investigators and prosecutors handing out unspecified deals in exchange for testimony against Weimer. In June 2016, the charges were dropped with prejudice, ending eleven years of wrongful imprisonment.

Unfortunately, the ending for Weimer is far from happy. Too many layers of immunity stand in the way of prosecutors, experts, and investigators being held personally accountable for destroying an innocent woman’s life. The prosecutor who led this witch hunt-esque “investigation” — DA Nancy Vernon — will escape some of the claims brought by Weimer. Most significantly — at least in terms of what this post is highlighting — she’ll dodge any responsibility for using junk science to help press a very shaky case against Weimer. According to the court, everyone was still in the bite mark Dark Ages and can’t be held responsible for the collective ignorance of law enforcement forensic techniques.

During the relevant time period—from late 2002 to early 2006—the unreliability of bite-mark evidence was not widely recognized such that “any reasonable official in [Vernon’s] shoes would have understood that [s]he was violating” Weimer’s rights by directing officers to investigate the timing of the bite mark on Haith’s hand. Despite allegations that the bite-mark expert later referred to such evidence as “junk science” during Weimer’s post-conviction proceedings, such evidence was widely used in criminal proceedings during and after Weimer’s trial, see Erica Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 Cardozo L. Rev. 1369, 1375–87, 1408 (2009) (outlining the scientific unreliability of bite-mark evidence and arguing that judges “circumvent[] their gate-keeping responsibilities” by “continu[ing] to admit bite-mark testimony into evidence”); see also Brewer v. Hayne, 860 F.3d 819, 824–25 (5th Cir. 2017) (holding forensic odontologists were entitled to qualified immunity when the plaintiffs showed only that the evidence the experts presented at trial in the 1990s was no longer considered trustworthy by later standards and that the experts may have been negligent in their analysis). Thus, based on the law as it existed at the time, Vernon was not on notice that her alleged conduct of directing further investigation into the bitemark evidence would violate Weimer’s rights.

But almost every other claim survives. The prosecutor who ignored the evidence she didn’t like (DNA evidence suggesting a male committed a crime/the lack of victim’s DNA on Weimer) in favor of the stuff she did (bite mark “analysis,” a bunch of jailhouse informants being offered deals) will have to face Weimer’s malicious prosecution and civil rights conspiracy claim without the shields of qualified or absolute immunity.

Filed Under: 3rd circuit, bite marks, crystal dawn weimer, curtis haith, fake science, forensics, junk science, nancy vernon, police, prosecutors, thomas beal

Third Circuit Court Of Appeals: Fuck Cheer, Indeed

from the suck-it,-admins dept

A little more than a year ago, a federal court was asked how much First Amendment do we hand out to minors? Well, it’s more than this particular school thought. The Pennsylvania school being sued was pretty sure it could draw the First Amendment line wherever it felt was appropriate. That’s why administrators took action against a teen cheerleader (referred to in the lawsuit as “B.L.”) when she decided to express her displeasure with her extracurricular activities with some extra-colorful language.

B.L. took to Snapchat to rant about her cheerleading experience, culminating in a “_fuck school fuck softball fuck cheer fuck everything_” post that the school decided violated B.L.’s agreement not to disparage the school or its cheer program. The school agreed that students had Constitutional rights, but that B.L. had waived hers when she joined the cheerleading program. The federal court disagreed, stating that the revocation of rights must be voluntary, but B.L.’s wasn’t really of the free will and volition variety.

[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules.

Also:

Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.

Having learned a valuable lesson about the First Amendment and how voluntary agreements should actually be voluntary, the school walked away from the suit chastened and newly respectful of students’ rights.

Oh wait. The other thing.

The school appealed, determined to waste more taxpayer money attempting to secure judicial blessing to screw taxpayers’ offspring. And the Third Circuit Court of Appeals says the First Amendment still holds.

Before we get to the heart of the First Amendment affirmation [PDF] delivered by the Third Circuit, let’s stop and appreciate this brief discussion of emojis.

B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. 1 The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” J.A. 484. To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else? ??.”2

Here’s the footnote appended to the inverted smiley:

The “upside-down smiley face” emoji “indicate[s] silliness, sarcasm, irony, passive aggression, or frustrated resignation.” Upside-Down Face Emoji, Dictionary.com, https://www.dictionary.com/e/emoji/upside-down-face-emoji (last visited June 25, 2020).

A wealth of emotions contained concisely. If brevity is the soul of wit, I have severely underestimated the incredible depth of the text messages I’ve received from my offspring. That being said, it’s great to see courts willing to discuss emojis since they’re going to be an inescapable part of First Amendment jurisprudence for the foreseeable (and unforeseeable, if we’re honest) future.

The court makes quick work of the First Amendment arguments. Is this speech protected? Yes. Tinker says so and has said so for years. Online communication platforms can blur the line between on-campus and off-campus speech, but the courts should err on the side of caution rather than draw harmful conclusions that damage free speech protections this country has respected since its conception.

The courts’ task, then, is to discern and enforce the line separating “on-” from “off-campus” speech. That task has been tricky from the beginning. See, e.g., Thomas, 607 F.2d at 1045–47, 1050–52 (declining to apply Tinker to a student publication because, although a few articles were written and stored at school, the publication was largely “conceived, executed, and distributed outside the school”). But the difficulty has only increased after the digital revolution. Students use social media and other forms of online communication with remarkable frequency. Sometimes the conversation online is a high-minded one, with students “participating in issue- or cause-focused groups, encouraging other people to take action on issues they care about, and finding information on protests or rallies.” Br. of Amici Curiae Electronic Frontier Foundation et al. 13. Other times, that conversation is mundane or plain silly. Either way, the “omnipresence” of online communication poses challenges for school administrators and courts alike.

[…]

The lesson from Reno and Packingham is that faced with new technologies, we must carefully adjust and apply—but not discard—our existing precedent. The thrust of that lesson is not unique to the First Amendment context. But it may be of special importance there because each new communicative technology provides an opportunity for “unprecedented” regulation. Packingham, 137 S. Ct. at 1737. And even when it is unclear whether the government will seize upon such an opportunity, the lack of clarity itself has a harmful “chilling effect on free speech.” Reno, 521 U.S. at 872. Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.

When B.L. hopped on Snapchat to deliver a set of derogatory F-bombs about her school experience, she did so with the force of the First Amendment behind her. This was about school. This was not of the school, so to speak.

Applying these principles to B.L.’s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv”). Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. And while the snap mentioned the school and reached MAHS students and officials, J.S. and Layshock hold that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”

Good stuff, but it gets even more entertaining here. The Appeals Court cited Tinker in support of its respect of the student’s free speech rights. The school cited Tinker in support of its refusal to respect the First Amendment rights of the student. Guess who’s actually correct.

The Tinker test asks whether or not contested speech might reach the school and leapfrog the gap between on-campus and off-campus. The Appeals Court says that’s an inevitability in the social media age. But that doesn’t change the underlying rationale. The question isn’t whether f-bombs on social media will be seen by other students. That’s always a possibility. The question is whether the student’s speech is perceived to be a representation of the school itself. In this case, the student’s Snapchat messages could not have been seen as a proxy for the school’s speech. It was solely the disgruntled cheerleader’s protected expression of displeasure.

We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.

The Appeals Court lays down the ground rules for further school-related free speech challenges. Social media platforms may have muddied the waters but the court wades in to draw a bright line.

[A] test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.

Finally, the court addresses the school’s contention that B.L. waived her rights when she agreed to participate in the cheerleading program. Whether or not the waiver was valid, the rule that waived it didn’t apply to B.L.’s fuck parade.

B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.

The court’s conclusion? We personally may not have chosen to deploy a mixture of swear words and emoji to convey our thoughts but that doesn’t make this conveyance of thoughts any less worthy of First Amendment protection.

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant’s Br. 24 (citation omitted). To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.” Tinker, 393 U.S. at 508–09.

Fuck cheer, indeed. Students of the Third Circuit: rejoice. The court has your foul-mouthed backs.

Filed Under: 1st amendment, 3rd circuit, free speech, schools