rights violations – Techdirt (original) (raw)

Texas PD’s Massage Parlor Sting Operation Ends With 13 Officers Disciplined, All 23 Criminal Cases Dismissed

from the doing-their-best-thinking-from-the-waist-down dept

Cops like to pretend they’re winning the war on sex trafficking. Whether or not there’s enough sex trafficking to justify law enforcement expenditures is, at best, still an open question. And most sex trafficking operations tend to end with the arrest of the people they’re supposed to be saving: the sex workers.

Then there are the investigations themselves. A bunch of vice cops are given permission to do whatever needs to be done to gather evidence, even if that means further exploitation of the people they’re supposed to be saving. Then there’s the collateral damage, which ranges from civil forfeiture targeting cars driven by people who happen to pass through, um… “high sex areas” to grabbing whatever cash happens to be lying around when officers storm massage businesses.

Then there’s this chain of events, which is as hilarious as it is infuriating. Here’s the only narrative I’m sure the Lewisville, Texas police department wanted to surface following its long-term sting operation against local businesses:

Lewisville Police Chief Brock Rollins said that in October 2022, the former street crimes unit was assigned to uncover alleged prostitution at nine massage parlors in the city, as well as one in neighboring Flower Mound. The operation lasted until June 2024, resulting in 32 criminal charges against 28 suspects.

Oh, if only we could freeze time! What a game changer that would be! This would be victory against sex trafficking, even it’s there’s nothing in here that suggests the 28 “suspects” might have been people being sex trafficked, rather than the traffickers themselves. Best case scenario (if we accept these assertions as true): 28 people were arrested for allegedly participating in consensual sex acts in exchange for money. That’s the best case scenario.

But there’s no best case here. In fact, there are no cases at all! This is literally the next paragraph in CBS’s coverage of this debacle:

However, the Denton County District Attorney’s Office told Rollins they wouldn’t be able to prosecute any of the 23 cases because undercover officers had engaged in “inappropriate physical contact” with suspected prostitutes.

LOL. I haven’t laughed this hard since I paid someone to make me laugh this hard in a transaction involving two consensual adults. Chief Rollins: we have made inroads against the scourge of consensual sex acts in Lewisville. DA’s office: your boys are the problem tho.

In response to having every single case dropped by the DA, the PD opened an internal investigation. The only surprise here is that it found some cops worth disciplining.

Three Lewisville police officers were fired and several others were disciplined after it was found there was “inappropriate touching” between some of the officers and alleged prostitutes they were investigating, authorities said Friday.

An internal affairs investigation was launched into the officers’ conduct, which spanned more than a year, and found that 13 officers had violated one or more of the department’s policies. The violations involved covert officers, a captain and sergeants, along with nearly two dozen prostitution cases that had more than 30 criminal charges against 28 suspects.

Chief Rollins still somehow believes he has the moral upper hand, though. He claims there’s “no evidence” officers had sex with any of the alleged sex workers (presumably because no rape kits or UV lights were deployed during this investigation). He also claims — quite ridiculously — that the entire department shouldn’t be judged by the actions of the 13 officers disciplined and the 54 officers interviewed during the investigation.

“This is not us,” Rollins said. “This is not the Lewisville Police Department. This is not normal activity for us. This is a very small subgroup of employees that ended up in an area of misconduct and we’ve remedied and rectified that.”

But it is you. The LPD only has 188 sworn officers. This means almost a third of those were interviewed and almost 10 percent of them are facing discipline. Since it’s impossible to believe the entire staff of sworn officers was engaged in this prostitution sting, we’re left to assume that most of the officers involved in this operation engaged in inappropriate conduct.

So, it is very much representative of the whole. The only difference is that every single case generated by this operation is being tossed due to officer misconduct. Until the next scandal surfaces, it is entirely logical to assume what’s been observed here is representative of the whole and is not limited to a “very small subgroup” of employees.

There’s no better support for this conclusion than the fact that the PD has yet to inform the public how many officers in total were involved in this operation. Instead, it has merely chosen to point to the total number of sworn officers in hopes of minimizing the impact of seeing nearly 10 percent of its entire force disciplined for misconduct following a single law enforcement operation.

Maybe it’s time for the chief to start asking tough questions of officers angling for vice-related posts. Because we’ve seen enough evidence everywhere else in law enforcement that suggests people who have vices they’d rather satisfy on the public’s dime tend to be drawn to enforcement efforts that will allow them to scratch their particular itches. It’s only the willfully ignorant that pretend uncovering widespread misconduct in operations that lend themselves to abuse is nothing more than stumbling across an anomaly that isn’t reflected elsewhere in the law enforcement agency.

Filed Under: brock robbins, lewisville police department, police misconduct, rights violations, sex work, texas, thin blue line

DOJ Investigation: Mississippi PD Ran ‘Dickensian Debtors Prison,’ Violated Rights Regularly

from the bigots-with-badges-beating-a-small-town-into-submission dept

It’s not just the Rankin County (MS) Sheriff’s Office being scrutinized by the US DOJ. While that’s the main concern following the conviction of six deputies of a self-proclaimed “Goon Squad” who spent hours brutalizing and torturing two black men, the rest of Mississippi apparently isn’t in great shape either.

This recently-released report [PDF] details the inner workings of the Lexington, Mississippi police department, which has apparently spent years abusing the rights of the 1,200 residents of the town. There’s old, old, extremely-old school policing going on in Lexington, where officers have leveraged their power to enrich themselves while reviving jail practices that align it with a pre-Civil War past in an entirely different country. Here’s more, from Nick Judin of the Mississippi Free Press.

U.S. Attorney for the Southern District of Mississippi Todd Gee, explained the gravity of the charges in a livestreamed morning press event. “Lexington has turned the jail into the kinds of debtors’ prisons Charles Dickens described in his novels written in the 1800s,” Gee said. “Only this is happening in Mississippi in 2024.”

The report details a litany of brutal, extractive practices primarily aimed at the Black residents of Lexington: countless arrests over extreme minutiae, including “illegal arrests, jailing people for conduct that is not criminal, like using profanity and owing money to the police.”

That’s just the stuff at the surface level. The extensive report is far more granular. And it details the sort of things you’d hope you’d never see committed by sworn law enforcement officers.

For instance, there’s the person whose experience with the Lexington PD opens the DOJ’s report — a litany of rights abuses that clearly demonstrates local officers felt they were above the law.

Hours after the Department of Justice announced its investigation of the Lexington Police Department (LPD) on November 8, 2023, officers chased a Black man through a field and tased him nine times. The man began foaming at the mouth. One officer pointed to a Taser probe lodged in the man’s hat and said, “Damn, one of my probes hit him in the head.” The man, who has a behavioral health disability, had been accused of disturbing a business.

This was not the man’s first encounter with LPD. Earlier that year, LPD officers had jailed him for ten days for trespassing; four days for stealing a cup of coffee; and twelve days for stealing packets of sugar. Each time they arrested him, LPD unlawfully refused to release the man until he paid money towards old fines and fees he owed from misdemeanors and traffic tickets. But each arrest added more fines and fees to the ledger. By November 2023, the man— who has no job, no assets, and no bank account—owed more than $7,500.

There’s the debtors prison — a corrupt system aided and abetted by officers willing to jail someone for twelve days for stealing sugar packets. Things haven’t improved despite a regime chance — something that only accomplished replacing one odious so-called public servant with another.

LPD made national news in July 2022 when a former officer released a recording of LPD’s Chief of Police, Sam Dobbins, bragging about shooting a Black man he referred to as a “n—–.” After the recording of Dobbins came to light, Lexington’s Board of Aldermen replaced him with Charles Henderson, who is still Chief today. During Dobbins’s year-long tenure, and continuing under Henderson, LPD has pursued an aggressive approach to policing low-level offenses. Officers arrest people for minor infractions like driving without insurance and parking in a wheelchair accessible space. They also make illegal arrests, jailing people for conduct that is not criminal, like using profanity and owing money to the police.

“Owing money” is the thing that motivates the Lexington PD. If the department can’t ensure a steady flow of fines and fees, officers have been forced to take unpaid time off. This literally poor town (its median income is only $39,000) can’t generate the revenue needed to pay officers, so officers have decided to take the law into their own hands to ensure their revenue stream goes uninterrupted, leading directly to horrific stuff like this:

For example, in July 2023, LPD officers broke down a 63-year-old Black man’s door to arrest him for calling a woman a “bitch” in a public place. On direct orders from the police chief, an LPD officer used a baton to smash in the man’s back door, then entered his home with his gun drawn. As the man ran out of his front door in fear, an LPD supervisor shouted, “Get him! Tase him!” The man fell while running and injured his leg. Officers handcuffed him on the ground.

Guns out for calling someone a “bitch,” something these officers likely do on multiple-times-daily basis, solely for the purpose of putting a few more dollars back into the town’s till so officers could keep getting paid to engage in further abuses to generate more income, etc.

The report goes on to note similar arrests and acts of violence, like officers tasing a man six times because he had an open container in the parking lot of a local bar or tasing another man for 15 seconds because he had tinted windows on his car. (Tasers cut off at 10 seconds, so the officer had to fire it again to hit the 15-second mark despite the first tasing having incapacitated the driver.)

There’s no hiding the fact that this is a rogue law enforcement agency abusing a single town for the sole purpose of enriching itself. Every arrest generates an automatic $50 “processing fee” that goes directly to the department, on top of whatever else officers can extract in additional fines and fees.

In 2019, LPD made 70 arrests. But LPD arrested 375 people in 2022 and 294 in 2023. Over the past two years, LPD has made nearly one arrest for every four people in town. That is more than ten times the per capita arrest rate for Mississippi as a whole.

The only reason for the small decline in arrests is that the DOJ announced its investigation in 2023. For a short period of time, the PD ceased arresting anyone for anything. But it didn’t last. And despite the presence of DOJ investigators, officers soon returned to their regularly scheduled abuses.

It’s all about the money:

In 2022, after LPD adopted its expansive arrest policy, Lexington’s revenue from fines increased more than sevenfold—from 30,000peryeartoover30,000 per year to over 30,000peryeartoover240,000. In 2023, Lexington collected more than $220,000 from fines, which made up nearly a quarter (23 percent) of LPD’s budget.

[…]

In a town of about 1,200 people, the total sum of outstanding fines is more than $1.7 million.

The PD can issue its own bench warrants for unpaid fines and court fees, generating even more arrests and processing fees. During its investigation, the DOJ discovered the LPD has 652 unique bench warrants on file — covering more than half the town’s population of 1,200 people.

Lexington residents are living in a police state — one overseen by town officials who either don’t care or feel powerless to end this. Most likely it’s the former, since part of the city’s budget is also covered by collected fines and fees. The incentives are so perverted, the town is under the thumb of a squad of full-time perverts.

The mission to collect old fines is so pervasive that officers use nearly every interaction with the public to check and see what people may owe. In July 2022, a woman came to the police station as a witness to give a statement in a murder investigation. LPD arrested her for old fines. In September 2023, an officer handcuffed a passenger from a traffic stop and brought her to the police station so that he could determine whether she owed them anything (she did not). In December 2022, an arrested man’s father arrived to bring his car home; LPD found that he owed old fines and threatened to arrest him unless he paid.

No one here is providing anything resembling “public service.” The report details the arrest of a man on disorderly conduct charges because he ran into the police station to avoid being beaten by an assailant who was chasing him. The alleged assailant was ignored by officers so they could book the person who ran into their station seeking help. In another case, officers booked someone on felony possession despite the amount of marijuana recovered being small enough to only trigger a misdemeanor under state law. DOJ investigators personally witnessed officers “brainstorming” additional charges during arrests to trigger as many fines and fees as possible.

The PD operates with so much impunity, this is the sort of thing its does on the regular.

In February 2023, officers arrested a Black woman on an “investigative hold.” LPD did not accuse the woman of any crime. Nevertheless, officers handcuffed her and brought her to jail, where she remained for the next five days. While the woman was in LPD’s custody, officers interrogated her about her boyfriend, who was a suspect in a murder investigation.

Officers also arrested and jailed the woman’s boyfriend on an “investigative hold.” After interrogating him, officers obtained a no-knock warrant to search the home that he shared with the woman. In the warrant application, officers stated that he confessed to shooting a gun and selling drugs. In body-worn camera video from his interrogation at the police station, he denied both.

The search did not yield evidence to charge anyone with murder. But officers did find about an ounce of marijuana and a bottle of pills they believed were ecstasy. They also found something else: the woman had running water, even though they believed she had not paid her water bill. Chief Henderson threatened to charge her with felony theft and federal racketeering for using the water. “And every gallon that’s been used, it’s gonna be charged,” the Chief said. “If it’s over so much, you’re gonna be charged with a felony, and you gonna be sitting in jail for a long time.” She could avoid these charges, he told her, if she could get her boyfriend to talk.

After the woman waited for two days in jail, LPD baselessly charged her with felony drug trafficking for the small amount of drugs found in her home. She bonded out five days later. Neither the woman nor her boyfriend was ever charged in connection with the murder.

There’s a lot more in the report. And it’s all disturbing and disgusting. This is sort of thing you might expect in nations where the entire government is corrupt or overseen by autocrats (or any blend of both). You don’t expect to see this in the supposed Land of the Free where certain rights are supposed to be inalienable. But this is what happens in the United States, especially in areas where law enforcement knows the population is too impoverished to fight back. There isn’t a single officer here that should still have a job, but sadly, it appears the department has yet to discipline any officers, much less fire them. The only response it has provided to this point is a “no comment” as it circles what’s left of its wagons and waits for the DOJ to leave town and take its spotlight with it. These are criminals with badges — nothing more and nothing less. And if town officials have any spine left, they’ll kick every last one of these assholes off the payroll.

Filed Under: 4th amendment, 5th amendment, doj, excessive force, investigation, lexington pd, mississippi, police misconduct, rights violations

NYPD Chief Caught Up In Corruption Probe Exits Office With Mandate Reducing Punishments For Officer Misconduct

from the hurling-one-last-'fuck-you'-to-the-public dept

It’s been a whirlwind few months for NYPD Commissioner Edward Caban, at least in terms of press coverage. None of it has been positive, though.

A few months ago, reporting from ProPublica exposed Commissioner Caban’s efforts to make the NYPD even less accountable than it always has been. Public records and other information obtained by ProPublica made it clear Caban wasn’t interested in cleaning up a police department that was costing residents millions of dollars a year in the form of lawsuit settlements.

Earlier this month, things went from par-for-the-unaccountable-course to shit hitting the fan. The FBI spent a few days raiding homes and offices of city officials and direct subordinates of Mayor Eric Adams. Adams, a former NYPD officer, claimed to be unaware of any criminal activity happening under this nose — something he buttressed by stating he had repeatedly told staff and appointees to “follow the law,” which is the sort of thing you only need to say more than once when staff and appointees seem insistent on breaking the law.

One of the targets of the FBI raids was none other than Commissioner Edward Caban. It’s unclear at this point if it has anything to do with his brother, Richard Caban, who runs a bar catering to NYPD officials that has been repeatedly cited for violations of building and fire codes. Even if not, that bit of information couldn’t have helped.

With the FBI breathing down the neck of the most powerful officials in New York City, Commissioner Caban has decided to press the eject on this phase of his career, resigning his post before the city has a chance to punish him for his (alleged) involvement in whatever it is the FBI is investigating.

But he has deployed a golden-esque parachute of sorts. Not for himself, though. The officers he’s leaving behind have been given an undeserved parting gift: reduced punishment for misconduct, courtesy of a top cop who spent his short term in office doing little more than reducing punishments for misconduct. Here’s Reven Blau with the details for The City:

The NYPD has quietly reduced the suggested punishment for cops guilty of abusing authority, using offensive language, failing to take a civilian complaint, and conducting an unlawful search, THE CITY has learned.

The changes to what’s called the disciplinary matrix are dated Sept. 9, just three days before now former Police Commissioner Edward Caban resigned in the middle of a federal corruption probe that has touched several members of Mayor Eric Adams’ administration.

The police commissioner has total control over the penalty guidelines and the mostly watered down version took effect this past Monday.

Fun stuff if you’re a misbehaving cop. And the NYPD has several of those. The matrix says less the bad stuff for bad cops, which means things that used to result in five-day suspensions are now subject to nothing more harsh than “additional training.”

The list of violations effected by the dilution of accountability ranges from the mundane to the “hey, maybe we shouldn’t let cops get away with this sort of thing.”

The categories of downgraded punishments include: violations of department rules and regulations; abuse of authority; discourtesy and offensive language; firearm-related incidents; off-duty misconduct; and prohibited conduct.

Some of these are violations best described as violations of employer policies. They should still be punished, though, and with more than some remedial training. Others are little more than “officers being assholes.” Even so, assholish-ness should be actively discouraged. Cops treating the people they serve disrespectfully can’t be handled with an extra PowerPoint presentation or two.

The worst part is Caban’s mandate also covers things are the subject of federal lawsuits:

Under the new rules, a cop guilty of an “unlawful search of premises” now can get a punishment that is nothing more than additional “training.”

This isn’t ticky-tack bullshit. This is the actual violation of constitutional rights. Treating this as a training problem is absolutely the wrong way to handle this. Certainly, re-training might be necessary but that should be on top of harsh punishments that make it extremely clear violating rights is never acceptable. And repeat offenders should be shown the door. Anything less than that is an insult to city residents, who not only have to deal with having their rights violated but are expected to cover the cost of lawsuit settlements with their taxes.

Caban’s exit and parting shot at accountability are par for the course, unfortunately. Officials who resign in the middle of outside investigations are also par for the course. Very few public officials are willing to take what’s coming to them, preferring to get out and under the radar before things get truly ugly. Caban’s exit is basically an admission of guilt. And it’s not enough for him to dodge his own personal accountability by taking the easy way out when faced with the consequences of his actions. He had to make it easier for the cops he left behind to do the same thing. These aren’t the actions of a leader. They’re the actions of a coward who loved the power but hated the responsibility.

Filed Under: corruption, edward caban, new york city, nypd, police misconduct, rights violations

Oversight Report Says More Than A Third Of Frisks Performed By NYPD Officers Were Unconstitutional

from the you-can't-make-us-improve dept

More than a decade ago, the NYPD was sued successfully over its stop-and-frisk program. A federal court found the program routinely violated rights and disproportionately targeted minorities. Judge Shira Sheindlin ordered a number of reforms to the program and it was placed under federal oversight.

Since then, the NYPD hasn’t changed much about how it handles these interactions. Officers were required to document these stops and provide demographic information about those stopped and/or frisked. It refused to do this.

It was ordered to more closely adhere to the Constitution. It didn’t do this either. Instead, the number of stops/frisks declined precipitously… at least on paper. But if cops weren’t filling out the forms, that meant an untold number of stops were happening every year. And that meant the new, radically lower number of stops was probably an illusion.

Both the judge and federal monitor tried (and mostly failed) to get the NYPD to play by the rules. The larger failure was deliberate, though. No one in the NYPD was interested in respecting constitutional boundaries. Violations went unnoticed and/or unpunished.

More than ten years on from the 2013 court decision, the monitors overseeing the court-ordered reforms have released another report [PDF]. And it shows the NYPD hasn’t changed a thing. Even when officers can be bothered to document these interactions, the documentation shows cops aren’t respecting rights or other limits placed on the NYPD’s stop-and-frisk program. (h/t CBS News)

If anything, it looks like the NYPD is getting worse in terms of constitutional compliance. As the court-ordered reforms continue to recede into history, the NYPD is regressing to its stop-and-frisk mean. Stops are increasing again. CBS News notes the number of annual stops has doubled since 2020. The report shows that quantity definitely isn’t quality. Here’s how things are broken down in the oversight report:

In 2020, 94% of frisks were based on reasonable suspicion. That dropped 10 points to 84% in 2021. 2022 saw another nearly double-digit drop, from 84% to 76%. As of the middle of last year, the numbers were abysmal: not even two-thirds of frisks were supported by reasonable suspicion (63%).

Things aren’t much better on the search end of things. The progression is stop (the lowest suspicion standard), frisk (more suspicion needed), and actual searches (probable cause, in most cases). That number has similarly declined over the past few years as the number of stops continues to increase. In 2020, nearly 94% of documented searches were legally justified. By the middle of 2023, that percentage had dropped to 68%.

That’s a lot of rights violations! Of course, there are a couple ways to look at this data set. Don’t worry. Neither option makes the NYPD look good or lawful or respectful of federal court decisions.

The legality numbers may have been higher back in 2020 due to selective reporting of stops, i.e., mainly those officers who followed every law, rule, and court-ordered regulation. That would explain why the legality of frisks and stops has declined as the number of reported stops have increased. More reporting is being done, but officers no longer care enough to only report stops that actually follow the rules.

The second option is that as stops increase, the care that goes into ensuring they remain constitutional has declined. This means officers feel more comfortable fully reporting unconstitutional stops/frisks/searches because they’ve observed over the past several years that officers aren’t getting disciplined for violating the Constitution. If anything, they’ve noticed officers getting punished for not filing reports, since that was the sticking point the last time the NYPD ran into trouble with its court-ordered oversight.

But it’s probably a blend of both options, considering under-reporting is still a huge problem:

After ten years of oversight, there are still too many officers who are making Terry stops but not documenting them in a stop report, as required. Underreporting of Terry stops by officers increased from 2020 to 2022. The Monitor team’s audit of BWC videos showed that 31.4% of Terry stops in 2022 were not documented.

Given what’s covered here, one would expect a more drastic decline in constitutionally-compliant stops if every stop were documented. There’s no reason to believe otherwise, given the NYPD’s stop-and-frisk history and its constant refusal to comply with court-ordered reforms.

Either way, nothing in the report gives any indication NYPD officers are fully compliant with court-ordered reporting requirements or the US Constitution. None of that is surprising. In fact, it’s difficult to call it “disappointing” because it’s exactly what we’ve been led to expect from the NYPD, if not law enforcement in general.

Another problem is noted in the report, even though the report doesn’t actually call it out as a problem. The monitors note that stops initiated by 911 calls are almost always handled in accordance with the law (96% compliant), but a majority of stops are made by officers who aren’t actually patrol officers. They’re made primarily by a couple of the PD’s task forces — special units that tend to be far more aggressive and far less respectful of residents’ rights.

In the same six months, the specialized units, such as the NST and PST, made the majority of the improper Terry stops, frisks, and searches, most of which were self-initiated stops involving officers stopping a person to investigate whether they had a weapon. For example, young Black and Hispanic men have been stopped without reasonable suspicion, often when they were wearing fanny packs. For many Terry stops reviewed by the Monitor team, the officer was in a police car some distance away from the person stopped and it was late in the evening when there was little light, and it was unlikely, if not impossible, for the officer to observe what might be a weapon through the fabric in a fanny pack. Additionally, there were also instances in which stop reports were inconsistent with BWC video or did not contain sufficient detail to legally justify the stop.

The NST is the NYPD’s “Neighborhood Safety Team,” a crew of specialized officers operating across all five boroughs who often “make arrests in unmarked vehicles.” It’s a rebrand of the PD’s “Anti-Crime Unit” (isn’t the entire PD “anti-crime?”) — one necessitated by that unit’s frequent rights violations.

The PST is the “Public Safety Team” — a specialized unit that is pretty much the same thing as the NST. The only difference is PST members wear police uniforms. However, like the NST, they drive unmarked cars.

So, the majority of illegal frisks/searches are being performed by officers who may not be readily identified as police officers — ones who are granted a vast amount of discretion in terms of their duties. And, as we’ve seen pretty much everywhere, giving cops more power, less direct supervision, and the opportunity to do their jobs dressed as something other than cops often results in a ton of misconduct, abuse, rights violations, and excessive force deployment. The NYPD is no different than any other law enforcement agency in the nation, other than it has more officers. That and the court-ordered reforms, which it has ignored repeatedly since they were first handed down more than a decade ago.

There’s a clear solution to this ongoing problem. The monitor’s report makes several recommendations, but one sentence at the end of page 34 sums up exactly why the NYPD isn’t getting any better at respecting constitutional rights or complying with court-ordered mandates.

First-line supervisors are not holding their officers accountable for unconstitutional Terry stops.

It doesn’t matter how much remedial training, policy updates, and body-worn camera audits the NYPD engages in if it won’t take care of this part first. No officer is going to care about training, policy changes, or audits of their stops if they know the most that will happen to them is being sent to another class on Terry stops. Unpaid suspensions and firings are the only things proven to work. Until the NYPD decides it’s going to engage in actual accountability, this problem will just keep getting worse. And history shows the NYPD as a whole needs the same sort of discipline. City officials need to be willing to fire or remove front-line supervisors and the people above them if they’re unwilling to do their jobs properly.

But if I’m a NYC resident, I’m not holding my breath. It won’t work any better than holding onto your wallet every time the city writes out another check to a victim of police misconduct. Maybe city reps can comfort their consciences by believing the NYPD is a necessary evil. But they should never forget they’re buddying up to evil because it’s so much easier than actually trying to make things better.

Filed Under: 4th amendment, federal monitor, nypd, rights violations, stop and frisk

Supreme Court Makes It Even More Difficult To Sue Federal Officials Over Rights Violations

from the BUILD-THAT-WALL dept

If you wanted even more leeway for government officials to bypass accountability, you’ve got it. Courtesy of the US Supreme Court, the immunity for federal officials has just been expanded. On a day when the court handed down two significant First Amendment victories, the court has dialed back an avenue of redress for people whose rights have been violated by federal employees.

This case has its origins in the 2001 Twin Towers attack. In the wake of the attack, the government engaged in some questionable behavior (not unlike some of its World War II actions), rounding up undocumented Arab immigrants and detaining them under harsh conditions.

When they were finally released, they sued the US government for violating their rights. Unfortunately, options for directly suing federal officers are severely limited. Up until the Supreme Court’s 1971 Bivens decision, plaintiffs had almost no way to seek redress for rights violated by federal employees. Bivens produced a new option, but its limited scope still made it very difficult for plaintiffs to secure a ruling in their favor. It’s especially useless in cases like the one before the Supreme Court — a case where the plaintiffs have no other way to bring a suit against the government other than going the Bivens route, thanks to their status as undocumented aliens at the time the rights violations allegedly occurred.

This new decision limits Bivens even further by adding national security concerns to the mix. In cases like these — prompted by federal government reactions to a domestic terrorist attack — the Supreme Court comes down on the side of the US government. But it’s not just national security playing a limiting factor in seeking justice for violated rights. It’s pretty much any case where the government hasn’t seen this particular sort of violation before.

Cornell law prof Michael Dorf points out how severely restricting this ruling is for plaintiffs who have a single recourse option available to them:

The key move in the majority opinion is one of characterization. The Court says that it is not enough for a Bivens action to be available that there are precedents in the same general area holding that no “special factors” warrant denial of a Bivens action; the “special factors” must be evaluated by reference to a highly particularized description of the case at hand. How particularlized? The Court says:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

The shorthand version is the same excuse used in tons of normal, non-Bivens civil rights cases: if the court hasn’t previously ruled on this specific set of circumstances before (and judged them to be a violation of rights), qualified immunity for government employees will be upheld. The problem is violations must be “clearly established” by a court decision to bypass immunity — which is an extreme rarity in a system that heavily relies on precedent, frequently punts on tough legal questions, and often tells plaintiffs their redress is tied to legislation Congress has yet to write, much less pass.

Mix in national security concerns, “special considerations,” and expansive immunity protections for government employees and this decision demands future Bivens petitioners do the impossible:

That means that it is now possible for a federal officer to violate clearly established rights–i.e., to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases–but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the “special factors” limitation.

To bring a successful Bivens action a civil rights plaintiff must now pass through the eye of a tiny needle inside the eye of another tiny needle.

The decision [PDF] also suggests plaintiffs just wait around with their rights violated until Congress does something about it:

The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.

What remains after this decision is almost nothing for plaintiffs — like the Muslims and Arabs rounded up in a legally-unsound reaction to a terrorist attack — and another expansion of immunity protections for federal officers and officials. As Steve Vladeck pointed out on Twitter, future Bivens cases will be limited to a small subset of prior Bivens decisions. The chances of previous decisions being perfectly applicable to the facts at hand in future cases hovers right around 0%. In the context of this case, it means the government can again engage in such a roundup of Muslims and Arabs without worrying about future lawsuits. None of the courts involved declared this roundup to be a violation of rights, so as far as the judiciary is concerned, similar actions won’t violate any established precedent.

Plaintiffs bringing these complaints — plaintiffs who often have no other options under the law — will have to be willing to spend lots of time and money pursuing miracles. The Supreme Court has ruled that if it walks like a duck, acts like a duck, but quacks a bit more like a Canvasback than a Mallard, federal immunity will be upheld..

Filed Under: bivens, civil liberties, civil rights, rights violations, scotus, sue government officials, supreme court