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A man charged with attempted murder after firing at Minneapolis police officers in the chaotic protests that followed George Floyds death has been acquitted of all charges against him

By AMY FORLITI Associated Press

September 3, 2021, 9:02 PM

4 min read

MINNEAPOLIS -- A man charged with attempted murder after firing at Minneapolis police officers in the chaotic protests that followed George Floyds death has been acquitted of all charges against him.

Jaleel Stallings argued self-defense during his July trial, testifying that he fired at the unmarked white van after he was struck in the chest with what turned out to be a nonlethal rubber bullet fired by police.

Stallings, 29, testified that he thought he was being attacked by civilians, had been struck by a bullet and was potentially bleeding out, his attorney, Eric Rice, told The Associated Press on Friday. Court documents show that after Stallings was hit, he fired three shots toward the van as a warning, then took cover. He surrendered when he realized he had fired at police. No officers were hit.

Stallings case drew new attention this week when an online digital news outlet, Minnesota Reformer, reported on his acquittal and examined the case in depth. The Reformer published body camera footage of his arrest that shows Minneapolis SWAT officers punching and kicking Stallings as he lay on the ground.

A booking photo of Stallings taken after his arrest shows visible facial injuries. Rice said Stallings testified he had a suspected eye socket fracture, bruising and cuts. Court documents say he also had labored breathing after the arrest, which Rice said was likely due to the impact of the rubber bullet to his chest.

Rice said hes not aware of any pending investigation or discipline for the officers, but requested such information if it existed and believes it should have been disclosed as part of trial discovery.

When asked if the officers were being investigated or disciplined for use of force, Minneapolis police spokesman John Elder said he cant release any information because the matter is under internal review.

Stallings is now seeking the courts permission to allow him to release body camera footage that became public evidence during trial, after a prior order in the case restricted dissemination of videos. A hearing on that issue is scheduled for later this month.

Stallings May 30, 2020, arrest made headlines during a time of unrest in Minneapolis, which included the burning of a police station, in the days after Floyds death. He was charged with two counts of second-degree attempted murder, multiple counts of assault and other charges. His case got added attention when the Minnesota Freedom Fund, a local nonprofit group, paid $75,000 in cash to get him released on bail.

According to court documents in his case, when Stallings realized he had fired at police officers, he immediately put his gun on the ground and lay face down, with his hands on the ground. A pretrial order from Judge William Koch said Stallings was motionless for 20 seconds and posed no obvious threat before Officer Justin Stetson and Sgt. Andrew Bittell approached him. The order says Stetson began kicking and punching Stallings in the head and neck, and Bittell began kneeing and punching him in the stomach, chest and back.

The judge found that Stetson and Bittell violated Stallings' Fourth Amendment rights during the arrest and that their actions were objectively unreasonable.

Officer Stetson and Sergeant Bittell allowed their anger and/or fear to overtake their faculties and they beat Mr. Stallings for nearly 30 seconds before attempting to place him in handcuffs, Koch wrote. The video evidence does not support their testimony Mr. Stallings was resisting arrest in any way, instead he surrendered to their authority.

The new attention on the case comes just months before Minneapolis voters will be asked to weigh in on a ballot question that would eliminate the police department and replace it with a new Department of Public Safety that would use a more comprehensive public health approach.

Originally posted here:
Man who shot at cops in unrest over Floyd death is acquitted - ABC News

from the can't-make-crime-fighting-omelettes-without-breaking-a-few-Constitutional-eg dept

How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.

This recent decision, highlighted by defense lawyer/"Constitutional cultist" Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.

Here's the setup, as presented by the Fifth Circuit [PDF]:

Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were seized when five or six patrol cars parked behind and around Mayos Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a Terry stop.

Some cops were doing some cop stuff in the area. According to the facts on record, the officers were "looking for suspicious behavior," a supposedly "proactive" effort in an allegedly high-crime area that is meant to deter criminal acts by, apparently, rolling up en masse on anyone viewed as suspicious by these Direct Action Response Team (yes, that spells DART) officers.

Flowers and Mayo were sitting in the parking lot of a convenience store. The officers were in the area because their supervisor had directed them to patrol near there because of "recent violent crimes and burglaries." This sounds suspiciously like "predictive policing," which sends cops to where crimes have been committed under the assumption that lightning strikes twice/people are less white. The Jackson, Mississippi panopticon works, I guess. But only on the assumption that people living, working, or temporarily idling a vehicle in a high-crime area have fewer rights than those fortunate enough to be elsewhere.

So, what were these two "suspects" doing that raised enough suspicion a stop involving five police cars and six officers was warranted? Failing to do anything other than sit in a car for less time than it takes to read the previous two paragraphs:

As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the drivers seat and one in the passengers seat. Officer Stanton observed the vehicle for approximately 10 to 15 seconds and noticed the occupants didnt appear to be exiting the vehicle, [and] didnt appear to be patronizing the establishment. Therefore, he decided to conduct what he characterized as a field interview.

Apparently, even non-movements can be furtive. The response to this momentarily-observed lack of activity was a literal swarm of police officers.

Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.

Behold the majestic absurdity of the following assertion:

Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them.

Who amongst us with five or six police cars surrounding our car would feel "free to leave," whether or not that option was communicated to us by one of the six surrounding the car? No one. Not a goddamn person would feel this encounter was still voluntary.

At least the Fifth Circuit Appeals Court said it was a seizure under the Fourth Amendment. Pretending it was still consensual was a step too far for even this notoriously law enforcement-friendly circuit. But the very least a court should do when presented with this kind of assertion is to apprise officers that literally no one -- not even the officer making this sworn statement -- actually believes this kind of "interaction" is consensual.

The end result was the discovery of some marijuana, a gun, and an outstanding warrant. This led to felony charges. And the Fifth Circuit is fine with this outcome because, hey, don't sit in a car in a high crime area, I guess.

It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stantons encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowerss person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.

That's the takeaway from this decision. Cops can wander over Constitutional lines as long as a court is willing to grant their "high crime area" assertions credibility. There's no legal definition of "high crime," so it can be whatever cops want it to be. And when they assert this in front of judges prone to grant every benefit of a doubt to fellow government employees, it will work nearly every time.

Flow our proxy tears, the court advocating on behalf of the policeman said:

Officers in such areas may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.

If the cops can't roll over rights to fight crime, how can they possibly fight crime? That's the question the Fifth Circuit is asking. And it should have an answer that says cops can't disregard rights just because they're patrolling areas where criminal activity is claimed to be "higher" than theoretical areas where it's apparently lower. But instead, the Appeals Court gives us this:

Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.

And that is that. The court has basically written a permission slip for stops based on nothing more than a few seconds of observation backed by officers' assertions that criminal activity has occurred nearby at some point in the past. Looking past the legalese, the Appeals Court is telling people their rights mean less if they happen to be in the wrong place at the wrong time, with the "wrong time" being a few seconds of non-movement while observed by officers trained to view literally anything as suspicious.

If there's any saving grace to this published decision, it's the dissent, which casts a whole lot of shade on the majority's conclusions while taking a shot at the overreacting cops.

As for the dawdling of approximately ten to fifteen seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officers reasonable suspicion.

That should have been the majority's conclusion. Instead, it chose once again to elevate police officers over the policed, and ensured the poorest of the police can be treated the worst without officers feeling they might be held accountable in a court of law for the rights violations they've committed.

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Filed Under: 4th amendment, 5th circuit, high crime areas, jeremy mayo, otha ray flowers, police, predictive policing, searches, suspicion

See original here:
Ten Seconds Of Doing Nothing Is Reasonably Suspicious, Says The Fifth Circuit Appeals Court - Techdirt

From Friday's decision in Soukaneh v. Andrzejewski, written by Judge Janet Bond Arterton (D. Conn.):

At approximately 8:34 pm on November 12, 2018, Plaintiff was operating a Kia Sorento LX in the vicinity of Hillside Avenue and Pine Street in Waterbury, Connecticut. Plaintiff had stopped his vehicle with the engine running in an attempt to unfreeze his iPhone GPS, which was located in a holder mounted to the dashboard. The dark and high-crime area where Plaintiff stopped his vehicle was well-known for prostitution, drug transactions, and other criminal activity.

As Plaintiff was attempting to fix his phone, Defendant approached his vehicle, knocked on the driver's side window, and requested Plaintiff's license. Plaintiff handed Defendant his license and gun permit, which he removed from the back of his sun visor. At the time Plaintiff handed over his license and gun permit, he told Defendant that he was in possession of a pistol, which was located in the driver's side compartment door. Defendant handcuffed and searched Plaintiff, and Defendant forcibly moved Plaintiff to the back of his police car. While Plaintiff was inside the police car in handcuffs, Defendant ran a check through the Northwest Communication Center to determine whether the pistol permit was valid.

The court held that the initial detention for questioning about why the car was stopped there was constitutional:

Defendant's basis for stopping Plaintiff's vehicle was that the car was stopped at night in the roadway with the engine running in an area known for drugs and prostitution. In Connecticut, a parked car may "not obstruct or impede the normal and reasonable movement of traffic." Thus, Defendant observed Plaintiff committing a traffic offense, giving him reasonable suspicion to stop Plaintiff, check his driver's license, and require him to step out of the car.

But the court held that the handcuffing and detention violated the Fourth Amendment, assuming the facts were as the plaintiff alleged:

Defendant conceded at oral argument that his conduct following the initial stop and check of Plaintiff's driver's license exceeded the bounds of a Terry stop, but that the conduct was still justified because he had probable cause to believe Plaintiff was possessing a firearm without a permit as he had not yet been able to verify the validity of the permit.

The question thus becomes whether Plaintiff's disclosure that he had a pistol in the car coupled with presentation of a facially valid, but not yet verified, permit can "arguably" constitute probable cause to believe that he was unlawfully possessing a weapon in his vehicle. An assessment of arguable probable cause requires consideration of the statute Defendant believed Plaintiff might be violating.

Connecticut General Statutes 29-38(a) makes the absence of a permit while possessing a firearm inside a vehicle an element of the offense, meaning that there needed to have been some evidence indicating the probability that Plaintiff was not licensed to possess a firearm in order to suspect that he had committed the crime of unlawful possession of a firearm in a vehicle. But at no time did Defendant have any reasonable suspicion or actual knowledge of Plaintiff's possession of the firearm without simultaneously knowing that Plaintiff demonstrated that he had an apparently valid firearm permit.

Indeed, it is undisputed that Plaintiff told Defendant that he had a pistol in the driver's side door compartment at the time he handed his driver's license and pistol permit to Defendant. And in his deposition, Plaintiff stated that when he handed his license and permit to Defendant, he said, "That's my license and including [sic] my pistol permit, I have a pistol on me." In the absence of any articulable reason for Defendant to believe the permit was counterfeit or otherwise invalid, there is no indication that Plaintiff was even arguably unlawfully possessing a firearm.

In light of the uncontested fact that Plaintiff presented his pistol permit to Defendant before or at the time he disclosed that he was in possession of a pistol and the absence of any other indicia that Plaintiff was otherwise violating the statute, no reasonable officer could believe probable cause was present. Any contrary holding "would eviscerate Fourth Amendment protections for lawfully armed individuals" by presuming a license expressly permitting possession of a firearm was invalid. To accept Defendant's reasoning would permit police officers to detain any driver because he or she may have a counterfeit or otherwise invalid driver's license which has been rejected by the Supreme Court.

Because, on the record read in the light most favorable to the non-moving party, no reasonable police officer could have believed he or she had probable cause to arrest Plaintiff, the Court denies summary judgment on the lawfulness of the de facto arrest .

The court also held that the law was clear enough that the police officer didn't have qualified immunity from the claim. And it likewise held as to the follow-up search of the car:

"[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons."

On this record, no reasonable officer could conclude that Plaintiff posed a meaningful threat of being "armed and dangerous" simply because he disclosed that he had a pistol and a license to possess it. Any contrary holding would make it practically impossible for the lawful owner of a firearm to maintain a Fourth Amendment right to privacy in his or her automobile.

More here:
Fourth Amendment Forbids Handcuffing Driver Just Because He Has Gun + Gun Permit - Reason

Aug 15, 20215:00 PMEDT

Many worry that the government will force Apple to grant access to their private photos since they now scan all iCloud uploads for child sexual abuse material.

Cupertino, California - After Apple's recent announcement that it would scan all photos uploaded to iCloud for child sexual abuse material (CSAM), many began to worry that the government could force the company to grant access to their private photos.

Matt Tait, the COO of security company Corellium, reassured users that because the US has the Fourth Amendment in place, the government wouldn't be allowed to use private scanning services to spy on American citizens, according to a summary provided by 9to5Mac.

The Fourth Amendment protects US citizens from unreasonable search and seizure.

Tait is a former analyst for GCHQ, which is the British version of the US' National Security Agency, so he should know what he's talking about.

The new concerns about spying stem from the recent Pegasus software hacking of prominent journalists and leaders who found their phone's information and private photos stolen and leaked.

A fear, according to Johns Hopkins cryptographer Matthew Green, is that the Department of Justice could go to the National Center for Missing & Exploited Children (NCMEC) and ask them to add other photos to the database that teaches Apple's program what to scan for. This could, perhaps, include photos of missing children, wanted criminals, or anyone who is a person of interest to the government.

Given that the NCMEC isn't a wholly government-run organization, there might not be much oversight when this happens.

In this scenario, the photos could then trigger Apple's new system, and if there is enough suspicion, the government could force Apple to turn over customers' information.

Yet, according to Tait, the fact that NCMEC isn't a full government entity is what will keep Americans safe, as they can't easily be forced by the government to do anything.

Apple could also blow the whistle on any requests for information that don't match CSAM parameters, signaling that the government is attempting to circumvent the Fourth Amendment and violate citizens' protection.

Likewise, Apple isn't obligated to work with NCMEC, and the relationship is voluntary.

Additionally, any perceived invasion of privacy would probably be overthrown in court, as it is unlikely the government could supply any proof this doesn't violate the Fourth Amendment.

At least for now, iCloud users can rest a bit easier.

Read the original:
Can the government use Apple's new iCloud scanning program to spy on citizens? - TAG24 NEWS

EFF would like to thank former intern Haley Amster for drafting this post, and former legal fellow Nathan Sobel for his assistance in editing it.

The Fourth Amendment requires authorities to target search warrants at particular places or thingslike a home, a bank deposit box, or a cell phoneand only when there is reason to believe that evidence of a crime will be found there. The Constitutions drafters put in place these essential limits on government power after suffering under British searches called general warrants that gave authorities unlimited discretion to search nearly everyone and everything for evidence of a crime.

Yet today, Google is facilitating the digital equivalent of those colonial-era general warrants. Through the use of geofence warrants (also known as reverse location warrants), federal and state law enforcement officers are routinely requesting that Google search users accounts to determine who was in a certain geographic area at a particular timeand then to track individuals outside of that initially specific area and time period.

These warrants are anathema to the Fourth Amendments core guarantee largely because, by design, they sweep up people wholly unconnected to the crime under investigation.

For example, in 2020 Florida police obtained a geofence warrant in a burglary investigation that led them to suspect a man who frequently rode his bicycle in the area. Google collected the mans location history when he used an app on his smartphone to track his rides, a scenario that ultimately led police to suspect him of the crime even though he was innocent.

Google is the linchpin in this unconstitutional scheme. Authorities send Google geofence warrants precisely because Googles devices, operating system, apps, and other products allow it to collect data from millions of users and to catalog these users locations, movements, associations, and other private details of their lives.

Although Google has sometimes pushed back in court on the breadth of some of these warrants, it has largely acquiesced to law enforcement demandsand the number of geofence warrants law enforcement sends to the company has dramatically increased in recent years. This stands in contrast to documented instances of other companies resisting law enforcement requests for user data on Fourth Amendment grounds.

Its past time for Google to stand up for its users privacy and to resist these unlawful warrants. A growing coalition of civil rights and other organizations, led by the Surveillance Technology and Oversight Project, have previously called on Google to do so. We join that coalitions call for change and further demand that Google:

As explained below, these are the minimum steps Google must take to show that it is committed to its users privacy and the Fourth Amendments protections against general warrants.

EFF calls on Google to stop complying with the geofence warrants it receives. As it stands now, Google appears to have set up an internal system that streamlines, systematizes, and encourages law enforcements use of geofence warrants. Googles practice of complying with geofence warrants despite their unconstitutionality is inconsistent with its stated promise to protect the privacy of its users by keeping your information safe, treating it responsibly, and putting you in control. As recently as October, Googles parent companys CEO, Sundar Pichai, said that [p]rivacy is one of the most important areas we invest in as a company, and in the past, Google has even gone to court to protect its users sensitive data from overreaching government legal process. However, Googles compliance with geofence warrants is incongruent with these platitudes and the companys past actions.

To live up to its promises, Google should commit to either refusing to comply with these unlawful warrants or to challenging them in court. By refusing to comply, Google would put the burden on law enforcement to demonstrate the legality of its warrant in court. Other companies, and even Google itself, have done this in the past. Google should not defer to law enforcements contention that geofence warrants are constitutional, especially given law enforcements well-documented history of trying novel surveillance and legal theories that courts later rule to be unconstitutional. And to the extent Google has refused to comply with geofence warrants, it should say so publicly.

Googles ongoing cooperation is all the more unacceptable given that other companies that collect similar location data from their users, including Microsoft and Garmin, have publicly stated that they would not comply with geofence warrants.

Even if Google were to stop complying with geofence warrants today, it still must be much more transparent about geofence warrants it has received in the past. Google must break out information and provide further details about geofence warrants in its biannual Transparency Reports.

Googles Transparency Reports currently document, among other things, the types and volume of law enforcement requests for user data the company receives, but they do not, as of now, break out information about geofence warrants or provide further details about them. With no detailed reporting from Google about the geofence warrants it has received, the public is left to learn about them via leaks to reporters or by combing through court filings.

Here are a few specific ways Google can be more transparent:

Google should disclose the following information about all geofence warrants it has received over the last five years and commit to continue doing so moving forward:

Google should also resist nondisclosure orders and litigate to ensure, if imposed, that the government has made the appropriate showing required by law. If Google is subject to such an order, or the related docket is sealed (prohibiting the company from disclosing the fact it has received some geofence warrants or from providing other details), Google should move to end those orders and to unseal those dockets so it can make details about them public as early as allowable by law.

Google should also support and seek to provide basic details about court cases and docket numbers for orders authorizing each geofence warrant and docket numbers for any related criminal prosecutions Google is aware of as a result of the geofence warrants. At minimum, Google should disclose details on the agencies seeking geofence warrants, broken down by each federal agency, state-level agencies, and local law enforcement.

Google must start telling its users when their information is caught up in a geofence warranteven if that information is de-identified. This notice to affected users should state explicitly what information Google produced, in what format, which agency requested it, which court authorized the warrant, and whether Google provided identifying information. Notice to users here is critical: if people arent aware of how they are being affected by these warrants, there cant be meaningful public debate about them.

To the extent the law requires Google to delay notice or not disclose the existence of the warrant, Google should challenge such restrictions so as to only comply with valid ones, and it should provide users with notice as soon as possible.

It does not appear that Google gives notice to every user whose data is requested by law enforcement. Some affected users have said that Google notified them that law enforcement accessed their account via a geofence warrant. But in some of the cases EFF has followed, it appears that Google has not always notified affected users who it identifies in response to these warrants, with no public explanation from Google. Googles policies state that it gives notice to users before disclosing information, but more clarity is warranted here. Google should publicly state whether its policy is being applied to all users information subject to geofence warrants, or only those who they identify to law enforcement.

Many people do not know, much less understand, how and when Google collects and stores location data. Google must do a better job of explaining its policies and practices to users, not processing user data absent opt-in consent, minimizing the amount of data it collects, deleting retained data users no longer need, and giving users the ability to easily delete their data.

Well before law enforcement ever comes calling, Google must first ensure it does not collect its users location data before obtaining meaningful consent from them. This consent should establish a fair way for users to opt into data collection, as click-through agreements which apply to dozens of services, data types, or uses at once are insufficient. As one judge in a case involving Facebook put it, the logic that merely clicking I agree indicates true consent requires everyone to pretend that users read every word of these policies before clicking their acceptance, even though we all know that virtually none of them did.

Google should also explain exactly what location data it collects from users, when that collection occurs, what purpose it is used for, and how long Google retains that data. This should be clear and understandable, not buried in dense privacy policies or terms of service.

Google should also only be collecting, retaining, and using its customers location data for a specific purpose, such as to provide directions on Google Maps or to measure road traffic congestion. Data must not be collected or used for a different purpose, such as for targeted advertising, unless users separately opt in to such use. Beyond notice and consent, Google must minimize its processing of user data, that is, only process user data as reasonably necessary to give users what they asked for. For example, user data should be deleted when it is no longer needed for the specific purpose for which it was initially collected, unless the user specifically requests that the data be saved.

Although Google allows users to manually delete their location data and to set automated deletion schedules, Google should confirm that these tools are not illusory. Recent enforcement actions by state attorneys allege that users cannot fully delete their data, much less fully opt out of having their location data collected at all.

* * *

Google holds a tremendous amount of power over law enforcements ability to use geofence warrants. Instead of keeping quiet about them and waiting for defendants in criminal cases to challenge them in court, Google needs to stand up for its users when it comes to revealing their sensitive data to law enforcement.

Continued here:
It's Time for Google to Resist Geofence Warrants and to Stand Up for Its Affected Users - EFF