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The entrance to the Department of Public Safety.

Last July, the New Jersey State Assembly unanimously passed Bill A-4553, which would have granted qualified immunity to public-safety officers who patrol private institutions. The Universitys Department of Public Safety (DPS), which, as of June 2019, employed 33 of the approximately 70 officers who work at private universities in New Jersey, offered testimony in support of the measure. Though the bill did not reach the floor of the State Senate, this Board finds the Universitys advocacy for qualified immunity disturbing.

The doctrine of qualified immunity protects officers from liability if they violate a plaintiffs rights, with the exception of cases in which they breach a clearly established statutory or constitutional right. By blocking avenues for legal recourse, qualified immunity renders citizens constitutional rights meaningless.

Qualified immunity was first invoked in a 1967 Supreme Court case, Pierson v. Ray, to shield white police officers from a lawsuit they faced for enforcing segregation. Today, it continues to be used to protect officers who engage in horrific acts of abuse, often towards people of color.

In 2004, Malaika Brooks, a black woman who was seven months pregnant, was driving her 11-year-old son to school in Seattle when she was pulled over for speeding. When she refused to sign the speeding ticket, fearing that doing so would be an admission of guilt, the officers demanded she get out of her car. After she refused, they tased her three times, dragged her across the street, and placed her in handcuffs.

Brooks sued the officers for use of excessive force, but her case was dismissed. The judges admitted that the officers had used excessive force, but, citing qualified immunity, concluded the officers could not have known their actions amounted to a constitutional violation. This is just one of countless examples.

In his testimony before the State Assembly, DPS Executive Director Paul Ominsky defended qualified immunity, which already applies to DPS officers in their interactions with students and other beneficiaries of the University. He argued the doctrine should also apply to officers interactions with non-affiliates on campus, because DPS officers require the same legal privilege as local police officers with whom they work side-by-side.

Indeed, we do take DPS officers as seriously as their counterparts. We stand against qualified immunity for campus police, as well as for all other officers. As Ominsky said himself, at a town hall hosted yesterday by Whig-Clio and Students for Prison Education and Reform (SPEAR), officers should be held accountable.

Other supporters contend that qualified immunity allows law enforcement to perform the discretionary functions of their job without fear of liability. There are scenarios, they argue, in which an officer might need to exercise force to uphold public safety, and the fear of facing a lawsuit might prevent them from doing so.

Yet, studies show that police officers rarely think about the possibility of getting sued while performing their jobs. As Micah Herskind 19 told The Appeal last August, you only need immunity for police violence if you plan on allowing for police violence.

Strengthening the relationship between the community and the Public Safety Officers who exist to protect us is essential to keeping campus safe for all, a point the officers repeatedly emphasized at last nights town hall. Qualified immunity only tilts the balance of power away from the community, fraying this crucial bond.

This Board opposes qualified immunity on principle and finds no reason for the University to support the expansion of this practice. In the words of Supreme Court Justice Sonia Sotomayor 76, qualified immunity renders the protections of the Fourth Amendment hollow and sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.

144TH EDITORIAL BOARD

Chair

Zachariah W. Sippy 22

Members

Benjamin Ball 21

Shannon E. Chaffers 22

Rachel Kennedy 21

Kate Lee 23

Madeleine Marr 21

Jonathan A. Ort 21

Elizabeth Parker 21

Emma Treadway 22

Ivy Truong 21

Cy Watsky 21

Originally posted here:
A disservice to the community: Against qualified immunity - The Daily Princetonian

Photo: Protesters surround an ICE van holding Samuel Oliver-Bruno at the US Citizenship & Immigration Services office in Morrisville in November 2018. (photo by Anna Carson-DeWitt)

Ten people involved in November 2018 protest attempting to block the deportation of a man who had been in sanctuary in a Durham church saw their charges dropped in a Wake County courtroom today.

Samuel Oliver-Bruno had been staying at CityWell United Methodist Church in Durham, and the day after Thanksgiving 2018 he went to the US Citizenship and Immigration Services office in Morrisville for what he expected to be a routine fingerprinting as a good-faith step in his quest for reprieve from a deportation order. Video published by the News & Observer shows Oliver-Bruno being tackled inside the immigration office, followed by a chaotic scene as ICE officers rushed him to a van, and supporters surrounded the vehicle while singing Amazing Grace.

Charges against 17 other defendants charged in the protest were previously dismissed after they completed community service under deferred prosecution agreements.

The remaining 10 defendants were each charged with failure to disperse and resisting, delaying and obstructing an officer.

Scott Holmes, the lawyer representing the 10 defendants, told Judge Eric Chasse that the failure to disperse charge requires a reasonable belief that a riot or disorderly conduct is occurring, and nothing like that took place during the incident.

Morrisville police Chief Patrice Andrews testified that an individual who was not among the defendants said f*** the police to her.

It gives me pause for concern that I potentially am going to lose control of a situation that until this point have worked very hard to control and to de-escalate, she said.

But the individual who said f*** the police was not arrested, and Andrews said she thought it would have been counterproductive to do so.

Assistant District Attorney Daniel Watts argued that the utterance of f*** the police was disorderly conduct.

Judge Chasse agreed with Holmes.

In so far as there was a belief that a riot or disorderly conduct was occurring, I cannot find under these facts that thats a reasonable belief, he said. And that is a predicate to issuing an order to disperse.

Chief Andrews testified that she responded to a call about ICE agents apprehending someone and not being allowed to leave. She said she was not familiar with the US Customs & Immigration Services building in her town.

So, I will tell you on that day it was actually a shock to all of us that this particular location was a location in which ICE was present at, to be quite honest with you, she said. Its a very unassuming building.

When she arrived on the scene, Andrews said she approached the ICE agents to figure out what was going on.

They were sitting in the car, Andrews said. I will be quite honest with you: They did not want to give me a lot of information. And I had to really press to talk to someone about what was going on.

Andrews said she viewed the federal arrest warrant for Oliver-Bruno, adding that she considered it her duty to do so and justify why we were being called there.

Andrews could not recall exactly what offense was described on the warrant. If I remember correctly, she said, it was something to the effect of, it was failure to comply or something along those lines.

Holmes pressed Andrews on whether she knew Oliver-Brunos arrest was a criminal as opposed to a civil matter, challenging the local law enforcement agencies authority to assist ICE.

I have training on proper Fourth Amendment search and seizure, Andrews said. I have over 20 some years of experience of being a law enforcement officer who is just and true. If I didnt feel ICE was there for a lawful reason, certainly we would not number one, there wouldnt be charges for the delay and obstruct of an officer. And there certainly would not have been the failure to disperse. There wouldnt have been one without the other.

Judge Chasse indicated he was having trouble ascertaining whether the resist, delay and obstruct charges were legally supportable considering he didnt know the name of the ICE agent, jestingly referring to him as Agent Voldemort.

I just dont have the evidence in front of me, he said, and I think Im stuck in that regard.

Chasse dismissed both charges against Susanna Barcus, Elizabeth Johnson, Hannah Hawkins and Frank Chambers. Afterwards, Assistant District Attorney Watts dismissed charges against Harold May, Lauren Park, Manju Rajendran, Jose Romero, Corey Summers and Scott West.

Rajendran said the dismissal was a bittersweet experience.

Ifeel so relieved that we were able to get our charges dismissed, she said. Imalso holding a lot of grief with the awareness that Samuel was unjustlydeported, and the suffering that their family and the whole community thatloves them has gone through. No family should ever have to go through that.

Rajendran was one of many Triangleactivists who responded to support Oliver-Bruno and suddenly found themselves makingthe decision to put themselves at risk of arrest after federal immigration authoritiesunexpectedly took Oliver-Bruno into custody.

What pulled me there that day with my daughter and family was a feeling that weve just got to create a system of solidarity so that when ICE agents are showing up to kidnap a member of our community, we all stand up for each other and protect each other, Rajendran said. I felt proud of our family for making a really swift decision that required very little deliberation to race there and show our support.

My mother was undocumented, shecontinued. And I felt like we had the chance that day to show up for ourneighbors in a way we would have hope our neighbors would have showed up forour family if something like that had happened to us.

Rajendrans daughter, who was2-years-old at the time, witnessed her arrest, and she said her daughter stillasks why Oliver-Bruno was taken away.

Rajendran said it was not difficultfor her as a mother to make the decision to put herself in a situation whereshe could be arrested.

But there was a police officer whowas trying to pressure me to break away, saying that it was not where Ibelonged as a mother, she recalled. And I said I was there because I wantedto be a part of building a world that my daughter and all children could thriveand be safe in.

Visit link:
Charges dropped against 10 who attempted to block an ICE van in Wake County - Triad City Beat

President Trump did not campaign as a civil libertarian. On the trail in 2015, he went hard in the other direction, making clear he "tend[s] to err on the side of security" and endorsing a full restoration of the NSA's Patriot Act-authorized bulk data collection, which was partially curtailed by that year's USA Freedom Act.

But now, in an apparent reversal, Trump is angling to be the president who dismantles some key parts of the post-9/11 surveillance state.

It's not because he suddenly cares about privacy at least, not your privacy. The evidence suggests Trump has become an unlikely champion of Americans' privacy rights for the simple reason that he is an American and would like his personal communications to be safe from federal snoops. This is possibly the stupidest scenario under which surveillance reform could happen, but let's not look a gift Trump in the tan line.

The president met Tuesday night with leading Republicans from both houses of Congress, reportedly directing them to craft a bipartisan bill that will not simply extend Patriot Act features (like the demonstrably useless phone metadata collection) ahead of a March 15 deadline. "The president made it exceedingly clear he will not accept a clean re-authorization ... without real reform," Sen. Rand Paul (R-Ky.) said after the meeting. "He was told by the attorney general, 'We can massage around the edges, and we can fix this through regulation,' [but] the president didn't accept that, pushed back very vigorously and said, 'We're not doing this.'"

For Paul, a longtime mass surveillance critic, this is a matter of constitutional principle. He was the sole Republican to vote against Attorney Gen. William Barr, his rival in the present battle for Trump's will, on the grounds that Barr is a "chief advocate for warrantless surveillance of U.S. citizens." Paul regularly speaks against metadata collection, calling it a "bullshit" security measure, and wants to end the use of warrants from the Foreign Intelligence Surveillance Amendment (FISA) court originally intended to monitor foreign spies to surveil U.S. citizens.

"FISA warrants should not be issued against Americans. Americans shouldn't be spied on by a secret court," Paul argued this past Thursday. "I think [Trump] agrees completely with that."

I think that's true, if by "Americans" we mean "Donald J. Trump."

The president has tweeted the word "privacy" precisely twice ever, both times reducing big topics NSA metadata collection and Fourth Amendment rights into entirely Trump-centric concerns. And we know exactly why the FISA court came on his radar as a Bad Thing: It was used to spy on his campaign with incompetent and unethical practices by the FBI, as the Justice Department's inspector general reported in December.

The DOJ report identified 17 "serious performance failures" in the FBI's process of obtaining of FISA warrants connected to the Trump campaign. This isn't the partisan malfeasance Trump has railed about for months, nor is it the unique conspiracy he seems to imagine. It's just how the FISA court operates. From 1979 to 2013, the court rejected only 11 of nearly 34,000 surveillance requests, a rate of 0.03 percent. In the last few years, the court has grown comparatively stringent, increasing its rejection rate all the way to 0.11 percent.

And it's impossible to say exactly what the FISA court has permitted thanks to its secretive organization. "FISA's inherent secrecy causes a chain reaction," explains cybersecurity reporter David Ruiz at the Electronic Frontier Foundation. "Because the [court's] surveillance orders are kept secret, it is hard to know if they are ever improper. Because criminal defendants are kept in the dark about what evidence was used to obtain a FISA order, they cannot meaningfully challenge if the order was wrongly issued."

With numbers and conditions like these, it's inconceivable the Trump-related application was the first to be approved with "serious performance failures." Indeed, we have every reason to think there's nothing wildly unusual about what happened to Trump's campaign. Still, if that's the case which gets us to meaningful surveillance reform well, I'll take it.

The president is interested in privacy right now because he thinks he's been subjected to special harassment. That's at best partially correct, and it has not produced a broader ethic of civil libertarianism in Trump, no matter how hard Paul tries to push him there. In a sense, Trump's demand for reform here isn't a reversal at all: He's changed his stance on the policy, but his core commitment to himself is as consistent as ever.

Continued here:
The most unlikely champion of privacy rights - The Week

A three-judge panel in the U.S. Court of Appeals for the Fourth Circuit ruled on Tuesday that the smell of marijuana from inside a residence meant police officers in Richmond, Virginia were justified to search a mans entire house, including any locked boxes or safes.

Melvin Lee Jones appealed his conviction for possession of a firearm by a felon and lost.

All of this goes back to May 2016, when police say they got an anonymous tip that Jones was selling weed and crack out of his residence. The unnamed individual claimed that Jones had a gun. Police didnt investigate this tip until August, 24, 2016.

On that day, three officers went to Joness home for a so-called knock and talk. When Jones responded to the knock and opened the front door, police immediately smelled a strong odor of marijuana smoke coming from inside the house.

Jones was arrested, and police entered the residence. Once inside, they found a still-smoldering marijuana cigarette sitting on top of the trash in an open trash can in the kitchen. A responding officer proceeded to apply for a search warrant so they could search the rest of Joness house.

That warrant, much to Joness dismay, gave cops permission to search safes and locked boxes as part of an investigation that began with the smell of marijuana. During the search, cops found a pistol, marijuana, crack cocaine, and items commonly used for packaging an weighing narcotics.

Jones tried to get this evidence thrown out at the district court level, saying that his Fourth Amendment rights were violated by an extremely overbroad search warrant. That motion was denied, and Jones wasnt successful at the appellate level either.

Judge Paul Niemeyer wrote that the bottom line here was that the warrant was appropriately authorized.

We conclude that because the officers had probable cause to believe that a crime was being committed in Joness house, the warrant appropriately authorized the search of the house for evidence of that crime. We find Joness argument that the warrant should have been limited in geographic scope because the smoldering marijuana cigarette in the trash can was the likely source of the marijuana odor to be unpersuasive, he wrote. Put simply, the presence of one marijuana cigarette in the kitchen did not negate the fair probability that other evidence of the crime of marijuana possession would be found in the house. Accordingly, we affirm.

You can read the ruling below.

United States v. Melvin Jones by Law&Crime on Scribd

[Image via Richmond Police Department/Facebook]

Read more:
Federal Court: Smell of Marijuana Justified Police Search of Entire House, Including Safes and Locked Boxes - Law & Crime

U.S. Border Patrol agents conduct a training exercise in front of the wall that divides Sunland Park, New Mexico, from Mexico, on Jan. 31.

Herika Martinez/AFP viaGetty Images

Back in 2010, 15-year-old Sergio Hernndez was hanging out along the Mexican side of the Southern border with his friends, playing a game where they would touch a fence on the border and then run back. A Border Patrol agent on the U.S. side named Jesus Mesa saw them and, when Hernndez ran again, shot and killed him in front of everyone in the middle of the day.

A civil suit was the only option for Hernndezs parents. The case, Hernndez v. Mesa, wound up at the Supreme Court, because the Department of Justice refused to prosecute Mesa, and when the Mexican government charged the agent with murder, the United States refused to extradite him. But just last week, the court decided the parents couldnt seek damages for their childs death. This case may seem singular and specific, but it really isntits part of a pattern at the Supreme Court that shows how the conservative majority is remaking immigration law, one ruling at a time.

On Mondays episode of What Next, I spoke with Slates Mark Joseph Stern, who covers the Supreme Court, about why this case is such a big deal and what the consequences could be. Our conversation has been edited and condensed for clarity.

Mary Harris: The decision in the Mesa case rests on a precedent called Bivens. How would you explain that case to people who arent familiar with it?

Mark Joseph Stern: The full name of the case is Bivens v. Six Unknown Named Agents. This was a case where six narcotics agents committed horrible abuses against a source: broke into his house with no warrant and strip-searched him. And Bivens thought, That was definitely illegal, that was definitely unconstitutional, that was a huge Fourth Amendment violation.

But heres the wrinkle: There is a federal law that guarantees you the right to sue a state law enforcement officer who violates your constitutional liberties, but there is no law that creates the same guarantee for federal law enforcement officers. If a state police officer abuses your constitutional rights, you can easily sue them under this statute. If a federal police officer violates your constitutional rights, it gets a lot trickier. And thats where Bivens comes into play.

Bivens is the only thing that establishes the right for anyone to sue a federal law enforcement officer when they behave badly. But Bivens is a rule, not a law, so a judge can overturn it. Since the 80s, conservative justices have seemed eager to do just that. Whats the argument against holding federal employees accountable when something goes wrong?

The argument, which I dont agree with, is laid out pretty clearly by Justice Samuel Alito in his decision. The Constitution has a separation of powers: There is the legislative power that Congress gets to exercise and theres the judicial power that the courts get to exercise. Alito says that when a court is figuring out how much money victims should get when Congress hasnt said anything about it, the court is usurping legislative power.

Theres also another argument made by conservatives, which is that with great power comes not so much the responsibility, but the necessity to use it. And they dont want to take away the power of these federal agents to be able to shoot first and ask questions later.

"Shouldnt this be a straightforward example of a law enforcement officer goingoverboard?" Mark Joseph Stern

That is tragically a persuasive argument at this Supreme Court: that federal agents need to make split-second decisions, that they need to be able to act quickly to protect the peace and protect lives. Sometimes theyll make mistakes, and they shouldnt be overly punished for those mistakes, because that comes with the territory. This court believes that about all law enforcement officers. So even when victims of police violence come to this court and are seeking justice for constitutional violationseven when Congress has allowed that to proceedthis court will often say, Were not going to let you do that because we dont want to tie the hands of law enforcement officers and make them afraid to use force when they really need to.

You were there for oral arguments for Mesa. Now that we have the decision, what do you think about how both sides presented their cases and how those arguments were received by the justices?

I think it was really clear during oral arguments how this case was going to come down, and that is because there was this massive gulf between the two different sides of the court.

For this family, this is not a difficult case. This is, in constitutional terms, an unreasonable seizure. This case involves a cross-border shooting, but the agent was standing on U.S. soil. He was a U.S. agenthe was vested with the power of the U.S. federal government. What the liberals were really asking was, why does it matter that the killing was at the border, that Mesa was an immigration officer? Shouldnt this be a straightforward example of a law enforcement officer going overboard? This belongs in federal court and the victims deserve to have their say.

Justice Sonia Sotomayor was a major character in these oral arguments. She asked, why is it a problem that we hold this agent accountable?

She cited this amicus brief that was filed by former high-level officials at Customs and Border Protection who said, We used to work at CBP, and this agency has a huge problem. This agency is violent, lawless, and unaccountable. There is no discipline here. If you dont let victims of CBP officers sue them in federal court, there will be no justice for the victims, because the U.S. government is never going to punish these officers. Sotomayor cited that and talked about how the agency has high rates of corruption and misconduct. Basically, the courts are the only ones who can step in and hold these people accountable. Nobody else is going to do it.

Sotomayor was saying that the play here is to make this agency accountable to no one.

Absolutely no one. There cannot even be a grieving parent of a victim coming into court and asking for modest damages. The agents are free to do whatever they want, anytime they want. No ones going to punish them.

This massive gulf between the liberal and conservative justices during oral arguments, you can see it in the final decision the majority handed down. For the conservatives, Bivens now seems very far from sacred.

Justice Clarence Thomas and Justice Neil Gorsuch have now come out and said they want to overrule Bivens. John Roberts, Brett Kavanaugh, and Alito have not admitted that yet. But reading between the lines of this decision, I get the sense that what theyre saying is: We will let you have your Bivens claims, but if you try again to expand this, then were going to overturn this precedent because weve never liked it.

If we look at the immigration decisions that have come down to the Supreme Court over the past couple of weeks as a test for how this jurisprudence will move forward in the future, what do they tell us?

They suggest to us that Trump, being unleashed and unrestrained after impeachment, is going to have more victories at the Supreme Court. Theres all of this reporting suggesting that his advisers and Cabinet secretaries and lawyers dont worry about legal challenges anymore. They now have total faith in the Supreme Court. Its going to be a pretty frightening run, because if Trump wins in November and shores up that majority, then he will have captured another branch of government. And nobodys going to step up to him and say, youve gone too far.

Listen to the full episode using the player below, or subscribe to What Next on Apple Podcasts, Overcast, Spotify, Stitcher, or wherever you get your podcasts.

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See more here:
The Supreme Court Just Gave the Border Patrol a License to Kill - Slate