south dakota – Techdirt (original) (raw)

South Dakota Legislature Passes Bill That Would Make It A Felony To Expose Officers To Drugs

from the 15-years-for-making-an-officer-faint dept

Despite all evidence to the contrary, law enforcement officials continue to pretend being in the same room as dread drug fentanyl is enough to hospitalize officers, if not actually kill them. This myth has been irresponsibly perpetrated by a number of law enforcement agencies. To date, not a single case of contact overdose has been verified by medical professionals or toxicologists.

It would be damaging enough if this irresponsible behavior was limited to law enforcement officials. But it has contaminated legislators at the local and national levels as well, resulting in the sort of stupidity we’re now seeing in the South Dakota House.

Can inhaling a small amount of fentanyl send you into an overdose?

According to medical and addiction experts, and media fact-checks, throughout the last few years, it’s almost impossible. But that research hasn’t stopped the South Dakota Legislature from taking up a bill that would make it illegal for a person to expose law enforcement to drugs that results in serious bodily harm.

HB 1025, sponsored by Rep. Ben Krohmer, R-Mitchell, passed out of the House of Representatives 40-29 on Wednesday and now heads to debate in the Senate.

Rep. Kromer swayed votes to his side by showing a couple of videos of supposed overdoses suffered by officers who had merely touched the substance. But his evidence is false. Neither of the incidents used to gain support for his bill actually showed an overdose. And we can say that without having seen either video because — as stated above — there have been no confirmed cases of contact overdoses anywhere in the nation.

The bill is as dumb as it is short:

Any person who unlawfully and intentionally possesses a controlled drug or substance, as defined in § 22-42-1, and exposes a law enforcement officer, firefighter, ambulance service personnel, Department of Corrections employee or person under contract assigned to the Department of Corrections, or other public officer, while the officer was engaged in the performance of the officer’s duties, to the controlled drug or substance, and the exposure results in serious bodily injury to the officer, is guilty of a Class 2 felony. If the exposure results in the death of the officer, the person is guilty of a Class 1 felony.

For the purposes of this section, the term “exposes” means exposure through skin contact, inhalation, ingestion, or contact with the site of a needlestick or a mucus membrane, including the mouth, eyes, or nose.

Yep. Felony charges for making a cop faint. If this bill becomes law, one can only hope no one charged with this is ever convicted. Class 1 is an impossibility because — once again — there are no confirmed cases of contact overdose deaths. Class 2 should also be considered an impossibility for the same reason, but that all depends on how the government chooses to define “serious bodily injury.” If all it takes is a trip to the ER, then cops who suffer panic attacks while in the presence of powdery substances are going to be able to lock people up for the crime of scaring them momentarily.

Fortunately, the rest of Sioux Falls Argus Leader article focuses on all the evidence to the contrary, delivering fact after fact that counters this ridiculous law enforcement narrative. Speaking to medical experts rather than agenda-pushing cops tends to seriously limit the amount of paranoia that ends up on the printed page.

Even one of the bill’s early supporters — a former law enforcement official — has walked back his support of Rep. Kromer’s literally fantastic proposal.

Rep. David Kull, R-Brandon, originally voted for the bill in committee but pulled his support on the floor, saying after he did his own research, he found officers’ symptoms in the body camera footage were akin to panic attacks, not overdoses.

“I have seen officers suffer from similar things where they weren’t necessarily injured by something but reacting to a situation that they would have a panic attack or pass out, which I would have never expected,” the former Brandon police chief said. “Fentanyl has been around for a while. It is a dangerous drug. But I can’t find anything that indicates that it is true.”

One down. But that still leaves 40 people in the South Dakota House who believe the fentanyl hype enough to pass a law criminalizing something that simply never happens.

Filed Under: ben krohmer, fentanyl, south dakota

South Dakota Agrees To Stop Censoring Vanity Plates Following ACLU Lawsuit

from the 1st-A-on-4-wheels! dept

Governments know the difference between right and wrong. It’s just that they often don’t seem to care.

This is a small-ish wrong, but it’s a wrong nonetheless. Like far too many other state bodies charged with policing vanity plate messages, the South Dakota Motor Vehicle Division has a problem giving its tacit blessing to other people’s speech.

Since the selected message (central to this lawsuit is the MVD’s rejection of “REZWEED”) is printed on a government-issued plate, states that want to deter as many vanity plates as possible pretend everyone seeing the plate would assume the government is uttering the phrase “REZWEED.”

But, of course, no one actually thinks that, not even the state officials and the lawyers who represent them. Everyone understands any message on a vanity license plate is one delivered by the purchaser of the plate, not the government they purchased it from.

And that’s how these state agencies ended up being sued. The state Department of Revenue (which apparently has the final call) rejected the “REZWEED” plate requested by resident Lyndon Hart. It did this despite approving other plates that might be considered just as questionable if someone were to presume (stupidly) that a vanity plate’s content implies government support of the brief message the plate contains.

When the government lays down rules but then enforces them inconsistently, it starts creating constitutional problems. The state’s inability to abide by its own statutes was exposed by the ACLU, which represented Lyndon Hart in this lawsuit. Here’s how the state was handling things before it got sued:

It’s OK to be a “HELLCAT,” but not a “HELLBOY.” Don’t tell anybody to “HLDMYBR,” but it’s fine to go on a “BEERRUN.” And don’t say “IH8U,” but “YUH8ME” is acceptable.

Why was “REZWEED” objectionable? Maybe because the state government isn’t all that happy that state residents were able to obtain partial legality of marijuana purchase/use. Governor Kristi Noem asked a bunch of law enforcement agencies to sue on the state’s behalf to get a legal weed referendum approved by popular vote struck down. But she and her state buddies were unable to prevent the legalization of medical marijuana. And the first beneficiaries of medical licenses were the state’s reservations. Hence: REZWEED.

The ACLU said the state’s enforcement of its vanity plate statute was arbitrary and inconsistent. And it was right — something the state has admitted without actually having to admit to having spent years operating an unconstitutional license plate business.

South Dakota will no longer deny personalized license plate requests on the basis that they may “carry connotations offensive to good taste and decency” after the ACLU filed a lawsuit against the state.

[…]

“The standard is deemed severed from the statute and has no force and effect in the issuance of personalized plates or in the recall of any previously issued personalized plate,” the settlement agreement document said.

So, there’s nothing in the consent decree [PDF] forcing the state to admit it unconstitutionally denied plates to residents. But at least the state won’t be able to keep violating the First Amendment moving forward.

The statute is amended will be amended to remove blanket judgments about “good taste and decency.” (The state website still shows the old law, as of prior to this agreement.)

On top of that, the Department of Revenue website must post a notice on its website informing plate owners and purchasers that the new policy will no longer utilize a “good taste and decency standard.” And anyone whose plate was denied in the past can reapply to obtain previously rejected plates.

As for the plaintiff, REZWEED is theirs to keep. And so are these other options, which suggest a fleet of vehicles now capable of advertising/celebrating the availability of medical marijuana via reservation licenses and dispensaries.

The personalized plates “REZWEED”, “REZSMOK”, or “REZBUD” issued to Plaintiff will not be recalled in the future so long as personalized plates are allowed by the legislature and Plaintiff is in continued compliance with all personalized license plate requirements consistent with this Consent Decree.

Let the good times roll. Medical weed is here to stay, it would appear. Fortunately, its arrival has forced the state government to give back the part of the First Amendment it took from citizens when it decided it had the final say on “good taste and decency.”

Filed Under: 1st amendment, license plates, rezweed, south dakota, south dakota mvd, vanity plates

South Dakota Looks Like It Might Be The Next State Asked To Explain Its Stupid Vanity Plate Laws To A Federal Court

from the wow-no-HLDMYBR-allowed-in-a-state-with-this-many-DUIs dept

Governments are weird. Maybe “weird” isn’t the right word. The more accurate word may be “opportunistic.” When it comes to speech they don’t like, they move into this mode. If they think they can silence it, they will try to. And they’ll do this while still pretending the speech they’re trying to control is nothing more than their own.

Dig if you will, my brothers: vanity plates. Government speech or personal speech? Those who view this rationally likely believe that the message on a vanity license plate is the expression of the plate’s purchaser. That it’s delivered by a state-issued plate doesn’t matter. We don’t actually believe the government is trying to send a message with their IMGOD or COPSLIE or LOVETOFU vanity plate. (ALL ACTUAL CASES.)

Instead, we would logically infer the truncated statement on the vanity plate expresses the views of the person paying for this privilege.

But the government also believes it has some obligation to “protect” other drivers from being offended by the personal expressions of others, which is a supremely ridiculous belief to entertain, even professionally. So, the entities issuing plates tend to err on the side of absurdity (governments tend to phrase this as “caution”), rejecting any plate any government plate content moderator might view as “offensive.”

Naturally, these discordant (read: unconstitutional) views have led to multiple lawsuits from offended purchasers whose preferred plates have been rejected for reasons most governments aren’t able to explain consistently, much less coherently.

A cop can’t get his “01NK” plate. A state says “COPSLIE” is a problem, but is more than happy to approve plates that are more cop-positive. An inability to see past “FU” means someone can’t reference tofu in their vanity plate.

Now, it’s my home state on the chopping block. As some of you are aware, I live in the darkest heart of the midwest: South Dakota, home to anachronisms like “felony ingestion” charges and, um, Governor Kristi Noem.

Believe it or not (and I was somewhat surprised myself), this state has a fully operational wing of the ACLU. And it is now going to bat to South Dakota drivers that have managed to irritate the state with their impertinent vanity plate requests. Here’s the rundown, brought to us by another valuable public service, South Dakota Searchlight:

It’s OK to be a “HELLCAT,” but not a “HELLBOY.” Don’t tell anybody to “HLDMYBR,” but it’s fine to go on a “BEERRUN.” And don’t say “IH8U,” but “YUH8ME” is acceptable.

Those are some of the inconsistencies in state government’s evaluation of specialized vehicle license plate requests, according to the American Civil Liberties Union of South Dakota. The ACLU sent a letter to state officials Tuesday citing what the organization described as actual examples of approvals and denials.

“Unfortunately, the state is censoring the free speech protected by the First Amendment and is inserting its own voice in the place of the citizens’ voices of South Dakota,” said Andrew Malone, ACLU of South Dakota staff attorney, in a news release.

The letter demands that the state Motor Vehicle Division, within 14 days, approve applications that have been denied on the grounds of carrying “connotations offensive to good taste and decency” since Aug. 1, 2022 (the ACLU told South Dakota Searchlight later that the date has no particular significance, but represents about a year’s worth of denials). The letter also demands that the state refrain from using the quoted rationale to deny any future applications.

Prompting this letter [PDF] is the rejection of resident Lyndon Hart’s request for a plate reading “REZWEED.” Medical marijuana was recently legalized (despite the governor’s best efforts), with the easiest access to medical weed flowing through reservations.

Apparently, the state Department of Revenue Motor Vehicle Division didn’t care for someone calling attention to the most abundant source of (LEGAL!) marijuana. So, it rejected Hart’s request.

Now the ACLU is in the mix. And it’s safe to assume that if the (let’s just call it the “DMV”) backs down, it’s going to be facing a lawsuit in the near future. The state’s Motor Vehicle Division has been too careless for too long with its arbitrary rejections of requested plates. And “arbitrary” is synonymous with “First Amendment violation” when it comes to trampling on speech the government should be considered to be protected, rather than demonstrative of secondhand state endorsements.

Here’s how the ACLU explains the current situation in SoDak:

In the past five years, more than 30 percent of the personalized plates denied by the Motor Vehicle Division were rejected because they allegedly carried “connotations offensive to good taste and decency” – a standard that is overly broad, vague, and subjective.

Although only a few characters long, vanity plates are often used to convey a meaningful expression of the driver’s personal message, identity, values, or sense of humor. Unfortunately, the state is censoring the free speech protected by the First Amendment and is inserting its own voice in the place of the citizens’ voices of South Dakota.

At this point, the state has two choices: it can change the rules to comply with the First Amendment. Or it can be named as a defendant in a federal lawsuit. Precedent is on the REZWEED’s and the ACLU’s side.

The First Amendment prevents arbitrary decision making when it comes to expression. The standards used by the Motor Vehicle Division are so arbitrary that it denied such plates as “HLDMYBR” and “BEERMOM” while approving “BEERRUN” and “BEERMAN.” It’s clear that the Motor Vehicle Division does not have in place adequate, lawful, and constitutional standards to assess personalized license plates.

If a state wants to have speech standards, it can. But — as the word “standard” indicates — the standards must be consistent and consistently applied. They cannot be whatever the hell is on display here.

I, for one, welcome our new ACLU-sued-into-submission vanity plate overlords. H8SC0PS is mine for the taking.

Filed Under: 1st amendment, lyndon hart, rezweed, south dakota, vanity plates
Companies: aclu

South Dakota’s Top Court Reaffirms Its Refusal To Consider Polygraph Tests To Be Actual ‘Evidence’ Of Anything

from the still-garbage,-no-matter-how-it's-used dept

It has been known for years that polygraph tests can be beaten. This supposed thing of science can be manipulated to clear guilty people if guilty people know how to trick it.

But law enforcement still likes polygraph tests because they can also be exploited in the other direction. When it’s your word against the word of the supposed polygraph expert, any amount of insignificant needle squiggles can be presented as an admission of guilt.

That’s why some law enforcement officials think people who teach people to beat lie detectors should be put in jail. And that’s why at least one federal law enforcement official thinks anyone calling polygraph testing into question should, at the very least, be subject to criminal investigations.

Like any junk science used most often by law enforcement, polygraph tests can be a double-edged sword. Every so often, the “test” clears somebody. That’s such a rarity that it’s rarely discussed. But it’s being discussed again in South Dakota, where a criminal defendant hoped his polygraph test would considered evidence of his innocence.

Casey Bonhorst was killed by a single shot after delivering a Domino’s pizza to a Sioux Falls home on the evening of February 26, 2020. Both Banks and Jahennessy Bryant admitted they were there. But each man claimed that he was only the lookout and that the other man pulled the trigger.

Banks wanted to introduce results of a polygraph test at sentencing to support his claim that he wasn’t the shooter, but Judge Houwman wouldn’t allow it. Justice Patricia DeVaney wrote the Supreme Court’s 16-page opinion.

Unfortunately for Raymond Banks, South Dakota courts no longer consider polygraph test results to be evidence of anything. And what’s most frequently abused by law enforcement to secure questionable convictions isn’t capable of helping this criminal suspect prove his innocence. What’s broken is broken for everyone — not just those who believe their lie detector tests results are the actual truth.

From the South Dakota Supreme Court decision [PDF], which local news station KELO actually posted along with its coverage, unlike so many other national news agencies that still seem to believe the only thing anyone needs to read is whatever their reporters have said about a publicly available court decision:

Given the reliability concerns surrounding polygraph evidence, this Court has established a per se rule prohibiting the admission of polygraph evidence in criminal and civil cases. State v. Bertram, 2018 S.D. 4, ¶ 14, 906 N.W.2d 418, 423–24. We have explained the basis for this per se rule, citing three rules of evidence, as follows:

The rationale advanced for not admitting evidence of polygraph results, in civil or criminal cases, is that such evidence is irrelevant because of dubious scientific value [(Rule 402)], it has no “general scientific acceptance as a reliable and accurate means of ascertaining truth or deception,” it is not reliable [(Rule 702)], it has no probative value, and it is likely to be given significant, if not conclusive weight by the jury, so that “the jurors’ traditional responsibility to collectively ascertain the facts and adjudge guilt or innocence is thereby preempted” [(Rule 403)].

That per se rule also applies to the unusual circumstances of this case, in which Banks sought to have his polygraph test results admitted for consideration by the court during his sentencing, rather than seeking to use these questionable results to establish his innocence.

Either way, it doesn’t matter. This state’s courts are unable (and unwilling) to consider this particular form of junk science to be admissible, no matter who’s seeking to have it admitted or why they’re trying to get this done.

And it’s not just a rule here. The nation’s top court has similarly rejected polygraph test results for the same reason: they simply cannot be trusted.

As the United States Supreme Court stated in rejecting a claim that a rule precluding the admissibility of polygraph evidence is contrary to a defendant’s constitutional right to present a defense, “there is simply no consensus that polygraph evidence is reliable.” United States v. Scheffer, 523 U.S. 303, 309, 118 S. Ct. 1261, 1265, 140 L. Ed. 2d 413 (1998). The Court in Scheffer also observed that “there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.”

Polygraph test results don’t even approach the lowest evidentiary bar for admission in court cases. If anyone wants to prove innocence or guilt, they’ll need more than an easily beatable system whose results can be skewed by any “expert” asked to testify. That stuff simply isn’t welcome in this state’s courts or, indeed, a vast majority of courts across this nation.

The circuit court, in refusing to admit Banks’s polygraph evidence because of reliability concerns, cited extensive research showing that most state and federal appellate courts considering the admissibility of polygraph evidence at sentencing have upheld refusals to admit this evidence. See, e.g., Ortega, 270 F.3d at 548 (citing numerous cases from other appellate courts). While Banks attempts to distinguish a few of the cases the circuit court cited, he has not refuted the central point that the weight of the authority is contrary to his position. Moreover, given this Court’s clearly expressed concerns regarding the reliability of polygraph evidence, Banks has failed to show how the circuit court’s ruling would be “clearly against reason and evidence…”

This may seem unfair to Banks and his attempt to reduce his 80-year sentence. But if it’s not good enough to secure a conviction, it’s not good enough to undercut convictions or reduce prison time.

Filed Under: evidence, junk science, poloygraph, south dakota

Federal Judge Blocks South Dakota County’s Attempt To Silence Ballot Petitioners The Government Doesn’t Like

from the don't-be-so-fucking-obvious dept

Full disclosure time, Techdirt peeps! I am a resident of this state. And, as such, I am painfully familiar with the governor’s pro-Trump performativeness, as well as the state legislature’s general disdain for the people it serves.

South Dakota is basically an on-shore tax shelter camouflaged by farmland and ultra-patriotic tourist traps. Governor Kristi Noem loves one amendment (the 2nd) and generally disregards the others. Despite being home to the one of the most massive COVID outbreaks in the United States, the state never instituted any lockdown procedures.

Noem also asked local law enforcement to sue on her behalf to block a successful ballot initiative legalizing recreational marijuana use. (She also inappropriately used her position to secure a real estate appraiser’s license for her daughter.) [Oh, and she he also wants to make it illegal for state-funded education institutions to refer to anyone by their preferred pronouns.]

It appears the state’s government — at multiple levels — is concerned the governed might be capable of producing groundswell movements that will upset its bigoted, sexist apple cart.

Dakotans for Health is a public interest group that has been attempting to create a ballot measure that would undercut the state’s anti-abortion measures that were aided and abetted by the Supreme Court’s recent abandonment of its own Roe v. Wade precedent. (The group also is seeking to create a ballot measure eliminating the state tax on groceries, but that is unlikely to have provoked the policy change being sued over, especially since Governor Noem herself has entertained the idea.)

It appears Dakotans for Health were possibly swaying too many people to their side. This led to Minnehaha County officials changing the rules of engagement in hopes of deterring people not aligned with their viewpoints from effectively expressing their viewpoints.

In May of this year, Minnehaha County Auditor Leah Anderson “requested” a policy change, citing a single heated interaction between Dakotans for Health petitioners and a couple of people apparently firmly in the anti-abortion camp.

This incident was the impetus for the amended “Limited Use Policy,” which forbade petitioners from approaching people entering the county’s administration building in downtown Sioux Falls, regulating them to arbitrary areas far removed from the building’s entrance, thus blunting the petitioners’ impact. It also required anyone circulating petitions to get permission from the Auditor prior to utilizing these small, useless areas.

Fortunately (and following the judge’s personal visit to the Administration building to view the affected areas first hand), the County will no longer be able to trample on the rights of people it would rather neither be seen nor heard.

The decision [PDF] recounts the facts of the case, including the judge’s own observations of the administration building. The areas petitioners are restricted to are located far from the most-commonly used entrance. To catch the attention of people visiting the building (which houses not only administrative offices, but the county court and jail), petitioners would need to shout across the parking lot at arriving patrons — something that would be unlikely to attract their interest, much less their signatures.

The court recognizes this new, extremely arbitrary restriction of petitioners to “zones” harms their First Amendment interest in expressing their viewpoint and/or finding an audience for their point of view.

Petition circulators to be effective need to be in a high pedestrian traffic area, close enough to invite voters in a conversational tone to sign the petition. Particularly in South Dakota, confrontational or aggressive or impetuous behavior from petition circulators is counterproductive to the goal of getting people to sign a petition for a ballot initiative. Accordingly, Dakotans for Health has instructed its petition circulators to “Stick to the Script. Your goal is to get the signature, not win the argument. Lengthy discussion and debates distract from that. So stick to the script. It is that simple.”

The previous policy only required petitioners to remain outside of the building and not obstruct any entrances. The new policy moved them far away from the most-used entrance and required petitioners to notify the county about their planned signature drives.

Heading towards the injunction, the federal judge first finds that the sidewalk traditionally used by administration building visitors and petitioners is, indeed, a public space subject to the usual First Amendment considerations.

This Court finds, at least preliminarily, that the sidewalk running in front of the west entrance to the Administration Building is a traditional public forum given the sidewalk’s connection with what indisputably is a public sidewalk, the sidewalk’s long history of being used for petition circulation, Defendants’ recognition of this long history in the Public Use Policy before May 2, 2023, and the sidewalk’s proximity to county legislative activity.

Likewise, the new “free speech zones” (or whatever the County Auditor wants to call them) are too restrictive and too far away to be of any use to citizens. Combined with the rewritten public use policy, the new mandates go far past what’s actually needed to serve the supposed objective of these restrictions: preventing petitioners from blocking entrances and/or entering the administration building.

Requiring petition circulators to remain in the designated areas… burdens substantially more speech than necessary to achieve Defendants’ interests in promoting public safety, efficient access to the Administration Building, and protecting county employees from harassment. As Plaintiffs note, simply enforcing the prior policy would address the Defendants’ concern without imposing a significant burden on Plaintiffs’ method of communication. After all, that policy required petition circulators to remain outside county buildings, avoid obstructing people entering and exiting the buildings, and to conduct themselves in a “polite, courteous and professional manner.”

Defendants could also convert, for instance, the one reserved law enforcement and adjacent handicap-accessible parking spots just outside the west entrance into a designated area, as this would allow Plaintiffs to solicit signatures in a conversational tone while at the same time secure efficient access to the west entrance by removing them from that limited area of the sidewalk right outside the west doors. In short, Defendants could easily achieve their interests without restricting petition circulators to the designated areas over fifty feet from the west entrance doors. And while Defendants are neither required to adopt this Court’s suggestions nor use the least restrictive means to achieve their interests, they cannot “regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”

Dakotans for Health win. The new policy is blocked, at least for the time being.

Plaintiffs have shown an irreparable harm as discussed above. There appears to be minimal harm to Defendants to require them to revert to the policy that they had in place before May 2, 2023, or to excise from the new policy the “designated areas” provision and the “check-in” prescreening with the Auditor. On the one hand, Plaintiffs face possible interruption of their First Amendment rights; on the other hand, entry of a preliminary injunction requires Defendants and their employees to endure the nuisance of petition circulators and blockers near the exterior doors on the west side of the Administration Building, which can be mitigated by better enforcement of the prior Public Use Policy, or alternatively devising a narrowly tailored policy that passes constitutional muster.

The government can still press its case to get the injunction lifted, but given what the court says here, it seems extremely unlikely it will succeed. And no matter what’s been stated on the record, it seems pretty clear this was enacted to keep Dakotans from Health from rallying support for ballot measure restoring South Dakotans’ reproductive rights. If the county wants to ingratiate itself with the governor, it will need to find a better, actually constitutional way of achieving this dubious goal.

Filed Under: 1st amendment, dakotans for health, free speech, leah anderson, minnehaha county, petitioning, public spaces, right of assembly, south dakota

South Dakota Journalist’s Extremely Ill-Advised Prank Call Being Treated As A Criminal Act

from the is-stupidity-a-crime? dept

First off, full disclosure: I live in this state. It’s one of those upper Midwestern states no one seems to live in and yet they do. I continue to endure the Trump-loving antics of our current governor, Kristi Noem, who somehow managed not to kill off a large percentage of the state’s population with her years of inaction during the COVID crisis.

While not encouraging/signing performative legislation, Governor Noem also finds time to get her personal phone hacked. Or, at least, that’s what she claimed earlier this year:

Following the leak of Governor Kristi Noem and her family’s personal Social Security numbers and other private information by the January 6th Committee, Governor Noem’s personal cell phone number has been hacked and used to make hoax calls. Governor Noem had no involvement in these calls.

It’s true the January 6th committee left Social Security numbers exposed when it published documents related to its investigation. How this led to Noem’s phone being hacked, however, is left to our imagination. The official press release suggests the two are related, but says something about “hacked” and says something about “making hoax calls” but never actually connects the two assertions.

What’s being treated as a criminal act by a local prosecutor in South Dakota doesn’t appear to have anything to do with Noem’s phone being hacked. In fact, it doesn’t appear to have anything to do with any recognizable criminal act.

A former Pierre-based reporter is facing charges for a January prank call.

Former KOTA and Dakota News Now reporter Austin Goss, 26, was arrested and charged with making threatening, harassing or misleading contacts, which is a class one misdemeanor. Goss appeared in court Thursday.

There’s no hacking here. That much is apparent from the arrest affidavit [PDF], which makes it clear the recipient of the call wasn’t being threatened or even credibly harassed. He may have been (initially) misled, but that’s about it.

The prank call was allegedly made to former South Dakota GOP chairman Dan Lederman. The alleged crime — “Making Threatening, Harassing, or Misleading Contacts” — doesn’t appear to cover what happened here. The law criminalizes spoofing phone numbers, but this “spoof” was made apparent by the end of the rambling, incoherent message delivered by this particularly stupid journalist to Lederman.

Here’s the phone call, as detailed in the charging affidavit:

“So now, you answer me this… Between the hours of midnight yesterday, and right now, where they disappear to?.. Did you check your basement? How many boxes of the Moderna where there?… Oh you think this is funny?… Yo! You’re making me say way too much on this line already… Marculo’s on the line here too. You best quit messing with me!… You know what? I’m going to tell you, I know what you said the other day…. You telling me, you didn’t tell Vito, that you were going to try to move the three boxes of that AstraZeneca outside this family?… You saying you ain’t said that?!… Oh, I’m getting so angry… You saying, you aint’ said that?!… You come here. Say it to my face…. Yeah, yeah I want you to say it to my face!… Hahahahahaha! You’ve just been pranked by PrankDial.com.”

It was definitely a dumb thing to do. But Lederman was informed by the end of the call that it was a spoof call. The “tone and tenor of the audio” (which Lederman claims “caused him concern for his safety”) is clearly ridiculous, what with its use of stereotypical Italian first names to infer some sort of mob involvement in moving around boxes of (presumably) COVID vaccines.

Dakota News Now and KOTA both terminated the reporter, which is definitely the proper response. But should this be a criminal act? It’s clear from context — not to mention that last lines delivered in the spoof call — that this was a prank. Yes, it probably annoyed Dan Lederman. But even if he was annoyed enough to contact law enforcement, there’s no reason cops and prosecutors should have decided this is a case worth prosecuting.

It’s a waste of limited resources in a state full of limited resources. Let the former journalist suffer through the future he’s created for himself, one that will surely be wanting for decent employment opportunities. But don’t give credence to Governor Noem’s “my phone has been hacked” speculations by pushing this case through the criminal justice system.

Filed Under: austin goss, criminal, dan lederman, kristi noem, prank calls, south dakota

More States Get Dumb, Introduce Laws Requiring ID Verification To Access Porn

from the please-apply-for-your-access-to-porn-license dept

There’s no reason anyone should look to Louisiana for legislative leadership. The state still has an oft-abused criminal defamation law on the books in 2023 — the sort of law that would have looked out of place a century ago.

I guess you can be on the cutting edge when your legislative moves appeal to backwards people. A new wave of moral panic is upon us, led by legislators who think they can cleanse the world by cleaning up the internet. Since the internet remains out of reach, a moral minority clad in legislative clothing has arisen, determined to limit everyone’s access to pornography by forcing sites to collect identifying information from site visitors.

The Louisiana law that took effect at the beginning of this year mandated ID verification by any site hosting “at least 33.3% pornography.” How this percentage would be determined was a problem left to the governed to sort out. The implementation of the law resulted in some compliance, with PornHub demanding info from visitors with Louisiana IP addresses. Other sites simply refused access. One-third-or-greater porn sites were steered towards using the state’s in-house ID verification app — LA Wallet — to verify users’ ages.

Copycat legislation is now popping up elsewhere in the country, as Ashley Belanger reports for Ars Technica.

Last month, Louisiana became the first state to require an ID from residents to access pornography online. Since then, seven states have rushed to follow in Louisiana’s footsteps. According to a tracker from Free Speech Coalition, Florida, Kansas, South Dakota, and West Virginia introduced similar laws, and laws in Arkansas, Mississippi, and Virginia are seemingly closest to passing. If passed, some of these laws could be enforced promptly, while some bills in states like Florida and Mississippi specify that they wouldn’t take effect until July.

Not great news for internet freedom. And, despite what legislators might say in support of these bills, these are designed to limit everyone’s access to pornography. The proposals may state concern for minors accessing sexual material, but the intent is to add friction to porn access with a nasty undercurrent of passive government surveillance running just below the surface.

Legislators may claim they have no access to identifying info gathered by porn sites, but claims like these are only as trustworthy as the people making them. Most people distrust lawmakers. Hence, most people will believe governments will know they’re accessing porn content, whether or not that’s actually the case.

Despite there being plenty of legislators deeply invested in passing performative laws, not every one of these legislative pitches will survive the less-than-close scrutiny of other representatives and other components of the legislative machinery. Belanger reports the South Dakota effort is currently stalled. And the law’s lead backer has offered up an absolutely hilarious explanation of her failure to shove this past a deeply conservative state legislature.

Republican Jessica Castleberry, seemingly failed to persuade the committee of the urgency of passing the law, saying at the hearing that “this is not your daddy’s Playboy. Extreme, degrading, and violent pornography is only one click away from our children.” She told Ars that the bill was not passed because some state lawmakers were too “easily swayed by powerful lobbyists.”

“It’s a travesty that unfettered access to pornography by minors online will continue in South Dakota because of lobbyists protecting the interests of their clients, versus legislators who should be protecting our children,” Castleberry told Ars. “The time to pass this bill was in the mid-1990s.”

There has never been a less likely to exist lobbying group than Big Porn. Castleberry appears to believe her fellow legislators were talked out of passing the bill by shadowy, suited men bearing black bags full of barely used Hustler back issues and handfuls of suspiciously sticky currency.

Equally as stupid as this scenario is the loaded language used by supporters of these laws. Some of this loaded language actually makes its way into the bills’ wording, resulting in dry legislative boilerplate occasionally punctuated by terms like “health crisis” or a peculiar insistence on referring to any and all sexual content (whether artistic or educational or of public interest) as “harmful content.”

This childish thinking isn’t actually going to protect any children. Limiting minors’ access to porn is a good idea, but the government isn’t the entity that’s most likely to succeed without causing a shit ton of collateral damage.

Filed Under: 1st amendment, adult content, arkansas, florida, free speech, id verification, internet freedom, kansas, louisiana, mississippi, porn, south dakota, virginia, west virginia

South Dakota Bans Government Employees From Using TikTok. The Countless Other Apps And Services That Hoover Up And Sell Sensitive Data Are Fine, Though

from the privacy-theater dept

Fri, Dec 2nd 2022 06:37am - Karl Bode

South Dakota Governor Kristi Noem put on a bit of a performance this week by announcing that the state would be banning government employees from installing TikTok on their phones. The effort, according to the Governor, is supposed to counter the national security risk of TikTok sharing consumer data with the Chinese government:

“South Dakota will have no part in the intelligence gathering operations of nations who hate us,” said Governor Kristi Noem. “The Chinese Communist Party uses information that it gathers on TikTok to manipulate the American people, and they gather data off the devices that access the platform.”

Of course, this being the post-truth era, the fact that there’s no actual evidence that China has even been able to exploit TikTok to manipulate Americans at any meaningful scale is just… not mentioned.

Fears that Chinese-based TikTok owner ByteDance could share U.S. consumer data with the Chinese government are at least based on reality. But as we’ve noted a few times now, the hyperbolic bloviation by many TikTok hysterics on the right (FCC Commissioner Brendan Carr comes quickly to mind) isn’t occurring in good faith, and their solution (ban TikTok) doesn’t address the actual underlying issue.

As in, the policymakers freaking out about the Chinese potentially getting access to TikTok user data are the exact same people who’ve fought tooth and nail against the U.S. having even a baseline privacy law for the Internet era. These are the exact same folks that created a data broker privacy hellscape completely free of accountability, and advocated for the dismantling of most, if not all, regulatory oversight of the sector. The result: just an endless parade of scandals, hacks, and breaches.

Now those exact same folks are breathlessly concerned when just one of countless bad actors (China) abuse a zero-accountability privacy hellscape they themselves helped to create.

You could ban TikTok tomorrow nationwide and the Chinese government could simply pivot on a dime and pay any of several dozen dodgy data brokers for most of the same data without issue. South Dakota government employees still have dozens of apps and services on their phones collecting an ocean of browsing, clickstream, or location data that then sell it to any nitwit with a nickel. That’s before you get to all the feebly-secured Chinese-based “smart home” hardware that oddly never warrants anywhere near the same attention.

We created a zero accountability privacy and security hellscape because for decades policymakers prioritized money over security, privacy, or market health. Now the exact same folks that opposed absolutely any competent oversight and guard rails (again, like Brendan Carr) want to singularly fixate on TikTok as the root of all evil — despite they themselves helping to create the problem.

Not only is such hyperventilation hollow and performative, it’s a giant distraction from our failures on consumer protection, adtech accountability, security standards, regulatory oversight, and privacy. It’s your right to believe that TikTok is the root of all evil, but it might be nice if folks hyperventilating took just a few moments to zoom out and realize TikTok is just a tiny part of a much, much bigger problem.

Filed Under: china, chinese, chinese surveillance, kristi noem, location data, phones, privacy, security, social media, south dakota, wireless
Companies: tiktok

South Dakota Court Says Government Doesn't Need To Pay For Home Cops Destroyed To Find A Fugitive Who Wasn't There

from the I-guess-this-is-on-you,-innocent-homeowner dept

Destroying houses appears to be a cop hobby. Somehow searching for suspects involves punching larger-than-man-size holes in walls, shattering every pane of glass that separates cops from perps, and forcibly removing every door that would otherwise open as designed if officers attempted to use the handles.

Maybe some of this is justified if an armed and dangerous suspect is barricaded inside. But law enforcement agencies have made citizens suspected of nothing homeless while attempting to extricate shoplifting suspects, homeless people, and a man armed with nothing more than an ice cream bar. One woman’s house was rendered unlivable after it was the centerpiece in a 10-hour standoff between local cops and the only resident located in the house: the family dog. And a house that contained no one was destroyed after its empty interior thwarted cops’ efforts to apprehend a nonexistent suspect for more than 19 hours.

Trying to get anyone other than innocent homeowners to pay for this damage is almost impossible. Almost every court has considered this the cost of doing government business — something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.

Another case involving the destruction of a house to capture a suspect who wasn’t even on the premises has made its way into the court system. And it has (mostly) dead-ended there, thanks to a recent decision by the South Dakota Supreme Court.

In this case, the Hamlin County Sheriff’s Department was searching for Gary Hamen, who had an outstanding arrest warrant for felony burglary and violation of a protective order. Gary — who had threatened to shoot himself and anyone else he came in contact with — called his father, Gareth, asking for a vehicle to drive to “Canada or Mexico.” At that point, he was in a nearby trailer home owned by Gareth, located about 600 feet away from Gareth’s trailer.

Officers listened in on this phone call and deputies saw Gary exit the trailer and then walk back inside. The Sheriff’s Department requested the assistance of the Watertown PD and secured a drone to fly over the trailer in an attempt to spot Gary or see any exit routes he might take.

A SWAT team assembled and set up a perimeter around the trailer. But this effort appears to have been mostly pointless. From the decision [PDF]:

While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.

Law enforcement also spoke to Gary’s brother-in-law, who confirmed he had seen Gary the previous night. During this conversation, officers received more information suggesting Gary was no longer in the trailer currently surrounded by a SWAT team.

Not too far away, even more radio traffic suggested entering the trailer wasn’t going to result in the discovery of the fugitive.

Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions among law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,’” to which another voice responded, “he’s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”

Deputies told Gareth they were going to try to enter the trailer. They did not mention they were planning to destroy the trailer to do this. They also did not ask for consent to enter the trailer, which was the property of Gareth Hamen. Cop-on-house violence ensued.

Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

And then:

Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.

Gareth Hamen sued, seeking compensation for his destroyed property. But there’s nothing in the law that says the government needs to pay for property it destroys — at least not in this fashion. While state law does allow property owners to seek compensation under the state constitution (in order to “ensure that individuals are not unfairly burdened by disproportionately bearing the costs of projects intended to benefit the public generally”), that clause doesn’t apply to cops destroying a house to find someone who wasn’t even in it. And it’s that way because this court has always said that’s the way it is.

[O]ur prior decisions have consistently applied the public use language in article VI, § 13 to both the takings and damages clauses, while rejecting a right to compensation under article VI, § 13 when the action involved the state’s police power.

That eliminates one of the allegations. But there’s still qualified immunity to consider. Unfortunately, the state Supreme Court says only one of those two allegations will survive.

There were two egregious Constitutional violations: the warrantless entry and the excessive destruction of personal property. Guess which one gets to go forward.

We conclude that, at a minimum, the Sheriff’s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry.

[…]

Given that law enforcement’s last contact with Gary suggested he was no longer in the home, coupled with the fact that law enforcement had surrounded the mobile home for several hours without incident or any materialized threat from Gary, we cannot determine as a matter of law that exigent circumstances existed at the time the Sheriff decided to enter the mobile home.

Since there’s plenty of information on the record that suggests at least some officers involved had reason to believe Gary wasn’t in the home, there could not possibly be exigent circumstances to enter the home without a warrant to locate someone arrested a couple of hours later outside of the home. This goes back to the lower court for more development of the record.

Unfortunately, the court somehow doesn’t consider the damage caused during the search to be worthy of further examination. The officers are granted qualified immunity for the excessive force, even though the court says the entry itself may have been unconstitutional. Walking through a front door without a warrant is no good. Forcibly removing the door (along with windows, walls, part of the septic system, etc.) is just fine because no “reasonable officer” would have been aware that destroying a house to facilitate an illegal search was unconstitutional.

Regardless of whether the Sheriff used excessive force, the Hamens cannot prevail because they cannot show that the Sheriff’s use of force, even if it was excessive, violated a “clearly established” right.

The dissent says this makes no sense. If the entry was unlawful, everything that connected to that entry is similarly unlawful.

Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff’s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry.

Furthermore, even if the entry is ultimately proven lawful, the damage caused was excessive, given the facts of the case.

Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue.

That’s how it stands in South Dakota: law enforcement can destroy a house to engage in an illegal search without having to worry about paying for the damage. A single claim survives this trip through the court system, which likely isn’t going to produce a decision or settlement large enough to replace the home. And even if it does, it will come years after the damage was done.

Filed Under: gary mhamen, hamlin county, houses, police, south dakota, swat team, wrong suspect

Federal Court Blocks South Dakota's Pro-Pipeline, Anti-First Amendment 'Riot Boosting' Law

from the SD-legislature-says-'no-life-changing-protests-on-our-watch,-thanks!' dept

When the protests of the Keystone XL pipeline project took off, state legislators (and prosecutors) tried to find some way to curb protected First Amendment activity. These efforts started with federal agencies like the CBP and FBI, which did what they could to make life difficult for protesters and journalists covering the protests.

Efforts were made to turn protesting into an illegal act, or hand protesters a bill for services rendered by police officers already being paid to do the sort of thing they were doing — keeping an eye on protests.

In South Dakota, legislators pushed through a law targeting “riot-boosting.” It defined this as the encouragement of violence during protests. It was passed in a hurry during the last week of the 2019 legislative session with an emergency clause that put it into effect immediately. The ACLU immediately sued, claiming the law was unconstitutional. As Courthouse News reports, a federal judge has arrived at the same conclusion.

A federal judge in South Dakota Wednesday blocked provisions of a new anti-rioting law signed by Gov. Kristi Noem earlier this year that aims to quash protests against the Keystone XL pipeline.

U.S. District Judge Lawrence Piersol granted American Civil Liberties Union’s request for the injunction for multiple riot laws and statutes, including Senate Bill 189, known as the “riot-boosting law.”

The ACLU, representing four environmental groups and two individuals, claims SB 189 violates the First and Fourteenth Amendments because the law fails to define what actions are deemed a violation that would constitute civil or criminal penalties.

The decision [PDF] notes that all four of South Dakota’s anti-rioting laws are impermissibly vague when it comes to regulating speech. The court points out some of these laws might be salvaged with some tighter editing, but the most recent one — put into place specifically to target pipeline protests with the intent of targeting “out-of-state money funding riots” — is the most problematic.

If all it takes is some forceful language using violent imagery to break the law, many of those leading demonstrations key to establishing and protecting civil rights would have been treated as criminals.

Even if the encouragement to protesters is in forceful language as was demonstrated by Charles Evers’ speech summarized in part in NAACP v. Claiborne Hardware C0., 458 U.S. 886, 900 n.28 (1982) (Evers told the assembled black people that any “uncle toms” who broke the boycott would “have their necks broken” by their own people. This was directed at all 8,000 black residents of Claiborne County), that is protected speech. None of these three terms encompass fighting words or true threats words that provoke immediate violence and are net protected by the First Amendment. So, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne Hardware, 458 U.S. at 927; Hess v. Indiana, 414 U.S. 105, 108-09 (1973). The many words or expressive activities that arise within these three terms, to advise, encourage or solicit, might in some instances be offensive to some or to many people, but they are protected by the First Amendment and cannot be the subject of felony prosecution or of tort liability and damages.

Beyond that, the law’s targeting of people doing nothing more than “advising, encouraging, or soliciting” has the potential to ensnare people who aren’t directly participating in protests (or riots).

By comparison to direction, the court finds the separate admonitions, whether criminal or civil, against advising, encouraging or soliciting to be vague in part because of their very breadth.

Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or thumbs up or 10toprotestorsisencouragingtheprotesters.Holdingupasigninprotestonastreetcornerisencouraging.Askingsomeonetoprotestissoliciting.Askingsomeonefor10 to protestors is encouraging the protesters. Holding up a sign in protest on a street corner is encouraging. Asking someone to protest is soliciting. Asking someone for 10toprotestorsisencouragingtheprotesters.Holdingupasigninprotestonastreetcornerisencouraging.Askingsomeonetoprotestissoliciting.Askingsomeonefor10 to support protesting is soliciting. Suggesting that the protest sign be bigger is advising. The possible violations of those felony or damage creating statutes against advising, encouraging or soliciting goes on and on. Encouragement, advice or solicitation for the protest on social media would be a fertile ground for damages or charges or both. And each of the examples involve protected speech or expressive activity.

The sometimes-unpleasant outcomes — the protests that turn to riots — cannot be targeted by laws that endanger the key free speech protections that allow protests to exist in the first place. If laws like these had been on the books several decades ago, America would be a very different — and much worse — country.

Imagine that if these riot-boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? Dr. Martin Luther King, Jr. was the President of the Southern Christian Leadership Conference with headquarters in Atlanta, Georgia. Dr. King personally took part in peaceful demonstrations in Birmingham, Alabama, against segregation. While jailed, Dr. King wrote his public “Letter from Birmingham Jail.” Dr. King wrote regarding the Birmingham demonstrations, “You express a great deal of anxiety over our willingness to break laws.”

And Dr. King goes on to explain in agreeing with Aristotle that “an unjust law is no law at all,” and then on to say “to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it [permitting] becomes unjust.” Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law for the many types of damages which could be claimed under SDCL 20-9-54 and 20-9-56 for soliciting, advising or encouraging another person to break the law. SDCL 20-9-56 also creates a separate civil cause of action for soliciting or compensating any other person to commit an unlawful act or to be arrested. Dr. King and the Southern Christian Leadership Conference could be liable for treble damages under that separate cause of action. The separate cause of action in SDCL 20-9-56 is not vague but it is unconstitutional in that it does not meet the Brandenburg requirements and infringes on protected speech and association.

And with that, the affected laws are blocked. Some will need to be rewritten. Some will have to have certain clauses removed. And the new “riot-boosting” law is blocked… at least until legislators find some way to achieve their goals without deciding the first thing against the wall should be protected Constitutional rights.

Filed Under: 1st amendment, free speec, keystone pipeline, protests, south dakota