Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email:

Monday, December 2, 2019

SCOTUS Addresses Second Amendment for First Time in a Decade

Back in 2009, we were new to blogging over here at the Law Blogger when a very differently configured SCOTUS last applied state law to the Second Amendment. In District of Columbia v Heller, decided in 2008, SCOTUS recognized for the first time an individual's right to bear arms in self defense.

Nearly 10-years ago to the day, we predicted that the 2nd Amendment cases yet to be decided that term would inure to the benefit of gun owners; we were correct. Our earlier post sets the stage for the case argued today before the SCOTUS; a case straight out of New York City.

This recent case, known as New York State Rifle and Pistol Owners v New York City, involves a relatively strict local ordinance banning transportation of personally owned firearms within the city. Eventually, NYC's licensed gun owners grew weary of violating this ordinance every time they wanted to take their weapons outside their homes outside the City. Asserting that the ordinance unconstitutionally interfered with their right to "keep and bear arms", they sued the Big Apple.

Both the federal court in Manhattan and the Second Circuit upheld Gotham's local ordinance. When the gun owners' petition for certeriorari was granted, our nation took note. Today, both sides argued before our High Court.

One of the first hurdles for the gun owner's this morning was the inconvenient fact that NYC amended its ordinance, gutting the onerous sections central to the litigation. In appellate terms, this rendered the issue moot; or at least arguably moot. Curiously, when NYC advised the SCOTUS of the amendment this summer, asking for a dismissal, the High Court declined to do so, scheduling the oral arguments for today.

Significantly, the mootness component of the New York case may give the SCOTUS the perfect cover to avoid a contentious 5-4 plurality on the hot-button issue of gun control. If the Court finds that the amendment rendered the gun ordinance constitutional, then there will be no merits decision or analysis of the Second Amendment.

According to the professional court watchers, the justices spent precious little oral argument time addressing whether NYC's former ordinance actually violated the Second Amendment. One clue from the Court's liberal wing arose when Justice Sonia Sotomayor characterized Heller's standard of determining whether the gun restriction was consistent with the "text, spirit and tradition" of the Second Amendment, was a "made-up" standard. On the other end of the SCOTUS spectrum, Justices Neil Gorsuch and Samuel Alito were focused on keeping the case from getting dismissed, and getting to the merits of the gun restriction.

As the case goes to conference over the next few months, the internal debate will, no doubt, involve gun control in the light of America's protracted epidemic of gun violence, shooting rampages, and weapons-based mass murder. This blog touched this nerve about a year ago in this post on "assault rifles"; the post resulted in dozens of lively comments on both sides of the issue.

We here at the Law Blogger will monitor the case and keep our readers posted. If the Court decides to address the merits of the case, an anxiously-awaited decision will be released in late May or June.  Otherwise, expect a one paragraph mootness dismissal with Justices Gorsuch and Alito writing separately.
Post #627

Labels: , , , , , ,

Sunday, September 15, 2019

Facial Recognition and Your Privacy


Lots of Cameras; Lots of Data

In China, they say the "authorities" can identify anyone, in any public place, in seconds. With a population of nearly 1.4 billion, that kind of state power is scary.  Can the United States be that far behind?

This real-time identification is the latest technological rage; brought to us by a high-tech process known as facial recognition. Like the geofence warrants profiled in our last post, facial recognition is getting lots of love from law enforcement as a highly-effective investigative tool to solve crimes.

Real-time facial recognition technology allows authorities to match any face, captured on a number of networked cameras, with an extensive and growing database. This is accomplished, by the way, in complete secrecy.

But what happens to our privacy when law enforcement can track all of our moves? Our privacy erodes to the point of extinction, that's what happens.

Detroit Police Department's Real-Time Facial Recognition Software

Here in Michigan, the Detroit Board of Police Commissioners has been attempting to articulate a facial recognition policy. Whether the Detroit Police Department is allowed to implement facial recognition in real-time; and whether such implementation will result in racial injustice for African-Americans are two of the hot-button issues surrounding the recently-acquired facial recognition software.

The DPD, with City Council approval, purchased the million dollar facial recognition software in January 2017. As soon as it was installed on the DPD's network, the scope of the software's implementation was the subject of a heated and protracted policy debate.

Police Chief James Craig, along with Detroit Mayor Mike Duggan, favor implementation of the software with certain safeguards. Chief Craig says that no one will be the subject of criminal charges based solely on facial recognition; that the software would not be used for real-time identification; and that officers transgressing these limits would be subject to disciplinary and possibly criminal sanctions.

As the Law Blogger was uploading this post, the Board of Police Commissioners approved the Chief's request for expanded use of facial recognition in a 8-3 vote. Now the expanded-use policy goes to the Detroit City Council for a ratification vote. With a top-ten big city murder rate, and enough unsolved case files to fill a good sized library, it is understandable why city leaders want broad implementation of the software.

In Detroit, ubiquitous security cameras, standard for most retail businesses, provide an excellent image feed for comparison to the DPD's photo database. The so-called "green light partnership" requires participating businesses in Detroit to maintain a minimum standard of lighting on their premises, and also requires installation of high-definition security cameras that feed directly into the DPD's computer network.

Most of the current green light partners are gas stations and liquor stores; high-profile crime targets. Soon, however, green light partners will include schools, churches and health care facilities. News stories about DPD's software also mention the potential for ubiquitous traffic cameras to be patched into the facial recognition software.

Obvious targets here in Detroit are the legion of repeat offenders whose images currently reside in the DPD's database. The database against which images are compared can easily be expanded from the basic mug-shot collection, to include social media images, Secretary of State images, and other government-maintained digital photo databases. And yes, there is a mobile-device-version of the software.

Biometric Privacy Rights

The DPD's implementation of facial recognition, and the similar -suspected- use of this technology by the Chicago Police Department, precipitated a review and assessment recently published by the Georgetown Law's Center on Privacy and Technology. Pilot face recognition programs are rolling-out in New York, Washington D.C. and Orlando.

Across the board, law enforcement officials issue assurances that the facial recognition software they are considering will not be used to monitor random citizens, immigrants, activists or people of color. Yet once implemented, the potential for serious Orwellian privacy invasion is certainly operational.

The Detroit chapter of the ACLU, of course, has been vocal in opposition to any adoption and use of facial recognition software, mostly on the basis such software has great potential to discriminate against people of color. Critics of the software claim it misidentifies people of color in a high percentage of cases. Perhaps for this reason, the City of San Francisco has banned all state use of this technology.

State Legislation

Here in Michigan, state legislators have introduced a bill prohibiting law enforcement from using any evidence obtained from facial recognition technology to enforce state law. The bill expressly calls for the exclusion of evidence so obtained as an express violation of the Fourth Amendment to the United States Constitution and section 11 of article 1 of Michigan's constitution.

This bill, of course, represents the other end of the spectrum. Placing an absolute bar to law enforcement's use of facial recognition technology will not likely pass any legislature, regardless of the political climate; such a bright-line bar is simply too restrictive.

A strong public interest exists in the privacy of our biometric data. One problem with facial recognition is that there is no way to "opt-out".

Illinois passed the nation's first biometric privacy legislation back in 2008. The Biometric Information Privacy Act proscribes the collection, use and dissemination of a citizen's biometric data without consent. This act, however, does not apply to state actors; only commercial entities.

Constitutional Concerns

Freedom of assembly under the First Amendment, and the Fourth Amendment's requirement that seizures be based on probable cause are fundamental rights. To the extent that collecting and transmitting our biometric data constitutes a seizure, minimum constitutional standards are sure to be developed.

Surprisingly, the Roberts Court is turning a studied eye toward not only selecting, but properly deciding some very interesting privacy cases. Last August, we blogged about the most recent such case: Carpenter v United States.

Carpenter was summarized in our post:
Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.
Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.
The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.
Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.
In the 5-4 opinion that granted Carpenter a new criminal trial, Justice Roberts declared that we do not waive our Fourth Amendment protections simply by taking a step outside of our homes. SCOTUS held that secretly monitoring and cataloging every single move across an appreciable span of time violated Carpenter's Fourth Amendment rights.

Given the growing list of U. S. cities bidding on facial recognition software, and considering the increasingly high-tech methods of data collection [i.e. geofence warrants, police drones, facial recognition] a case will come along soon that is ripe for a petition for certiorari before the SCOTUS.

Until then, our privacy rights continue to erode. Where we go, when we go there, and with whom, are now as much a part of our digital profile as our key-strokes on Internet-connected devices. Should the state have unfettered access to our profiles?

We Can Help

If you or a family member have been the subject of a warrant or criminal charge, based in whole or in part, on facial recognition technology, or on a geofence warrant, contact our law firm to have your options assessed.

Post #626

Labels: , , , , , , , , ,

Sunday, April 28, 2019

Geofence Warrants and Privacy Rights

Geofence warrants, also known as reverse location warrants, are new to the law enforcement toolbox. Now these warrants are quickly becoming recognized by law enforcement as an effective method to gathering evidence of crime.

In some cases, evidence gathered by multi-step reverse location warrants is the only evidence available in the case. These warrants are also getting attention from the national media and soon could be heading to the SCOTUS for a show-down with our privacy rights and the Fourth Amendment's probable cause requirement.

What is a Geofence Warrant?

In recent years, police, investigating a crime with few or no clues, have increasingly turned to almighty Google to help them find the perpetrator. First, law enforcement issues a warrant to Google requesting data about any and all devices present within certain spatial and temporal parameters matching an unsolved crime.

Google then responds to the multi-step warrant by transmitting to the requesting agency a log designating -anonymously- all registered devices that fit the warrant's parameters. Law enforcement then takes that anonymous raw data and determines which code-designated devices merit further information. These suspect devices then become the subject of a second warrant to Google; more personal and identifying information is requested. [Note: the SCOTUS has already held that law enforcement must first obtain a search warrant pursuant to the Fourth Amendment prior to forcing access to a suspect's password protected cell phone.]

After providing lip service to their policy of narrowly construing such warrant requests, Google responds by tapping into its Sensorvault database, created in 2009. Sensorvault is connected to Google's "Location History" service, as well as other location-based apps such as the Web & App Activity; a separate database.

We've all noticed when our iPhones or Android devices prompt us to enable the location history function. This allows Google to provide you with directions to anywhere in the world along with many other spatially-related information services.

The first-known Geofence warrant was issued in 2017 in North Carolina. The case related to the suspected arson of a 7-story apartment complex. Raleigh Police had no leads to bolster their suspicions; for a year, their investigation bore no fruit until they requested a warrant for information from Google.

Often, judges issue such warrants under seal to protect the privacy of the many users having nothing to do with the crime being investigated. The Raleigh Police, for example, have made reverse location warrant requests in murder and sexual assault cases in addition to the arson suspect.

Google now processes hundreds of such multi-step warrants weekly; that number is expected to rise significantly as law enforcement agencies become aware of this new investigative practice. You don't have to be a tech genius to realize the significance of such warrants for law enforcement.

One of the drawbacks to securing such warrants are the significant processing delays. The multi-step reverse location warrant requests have become so numerous, Google has a separate division dealing exclusively with such requests. 8-weeks to six-month delays are not uncommon; there are also two components to the request.

Geofence Warrants Provide Circumstantial Evidence of Crime.

Law enforcement has been securing location data from a specific suspect’s or witness’ digital devices for over a decade. Reverse location warrants, however, constitute a relatively new digital dragnet for when a case has gone cold, or has no viable clues.

This new multi-step warrant process is much more comprehensive than a cell tower data dump. For decades, police and prosecutors have been using data pulled from cell phone towers to solve crimes. 

Data from cell towers is limited and incomplete relative to the Sensorvault and Web & Activity App databases. For example, Google's data is ultra-precise and historically detailed, even when a suspect or witness does not place a call on their cell. In other words, Google's data depicts every aspect of our lives, not just the patterns elicited when actual calls are placed.

Such comprehensive information about suspects and witnesses constitute a veritable treasure trove of circumstantial evidence for law enforcement. Digital location tracking of a specific Android or iPhone device can produce circumstantial evidence of a suspect’s relationship to an unsolved crime. 

In every criminal jury trial here in Michigan, circumstantial evidence is commonly defined as: 

  • Facts can be proved by direct evidence from a witness or an exhibit. Direct evidence is evidence about what we actually see or hear. For example, if you look outside and see rain falling, that is direct evidence that it is raining.
  • Facts can also be proved by indirect, or circumstantialevidenceCircumstantial evidence is evidence that normally or reasonably leads to other facts. So, for example, if you see a person come in from outside wearing a raincoat covered with small drops of water, that would be circumstantial evidence that it is raining.
  • You may consider circumstantial evidenceCircumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove the elements of a crime. In other words, you should consider all the evidence that you believe.

Judges always instruct juries that an accused can be convicted solely on the basis of circumstantial evidence. Direct evidence tends to be higher-quality evidence, but circumstantial evidence is often sufficient to convict the accused.

There are no known cases, however, where a suspect has been charged solely on the basis of a geofence warrant. An independent criminal investigation must still be conducted using the reverse location data. 

Over time, however, a case based solely on circumstantial evidence cultivated from a geofence warrant is sure to present itself to the court's. In the proper judicial and appellate hands, a sensible policy can be fashioned going forward. At present, privacy concerns, relative to the law enforcement process -as envisioned by the drafters of the 4th Amendment- is at risk

Geofence Warrants Raise Privacy Concerns.

There can be many legitimate –non-criminal- reasons for an individual’s presence within the parameters of a reverse location warrant. In fact, usually, all but one device has a legitimate and potentially relevant reason for leaving a particular digital footprint.

Sensorvault and the Web & Activity App contains an enormous amount of our personal data. The database contains detailed historic records of our locations -both temporal and virtual- the products we use, the products we view, the identities of our friends, and it can match-up times associated with each of these and many other minutia of our daily lives. This, of course, raises significant privacy concerns.
Sometimes, however, law enforcement simply gets it wrong. This was the case for Jorge Molina who was mistakenly charged with murder in Phoenix, Arizona a few months ago. Mr. Molina’s case was recently profiled in the New York Times.

Turns out, Molina’s mother’s boyfriend used his vehicle on occasion. So while the reverse location warrant yielded some eventual fruit for law enforcement, it disrupted Mr. Molina’s life first by violating his privacy and precipitating a week-long incarceration.

Once you are identified as a witness or suspect, turning-off your Location History, opting out, or deleting the history can also be viewed as circumstantial evidence of guilt. Such acts can be held against a suspect, just as wiping a hard drive clean is often used against an accused. Covering your tracks constitutes circumstantial evidence of guilt; or at least it will be portrayed as such by the prosecutor.

Are Multi-Step Reverse Location Warrants Constitutional?

The Fourth Amendment to the United States Constitution states that, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  One concern with multi-step reverse location warrants is their wide spatial temporal breadth. 

Particularity is required under the Fourth Amendment, which calls for a limited search based on probable cause. Most geofence warrants, on the other hand, by their nature, seek raw data covering potentially thousands of individuals over a wide-span of time. 

In addition, the two-step warrant process scoops-up scores of innocent bystanders within its dragnet. Courts usually abhor the fishing-expedition technique for issuing warrants for the main reason that fishing expeditions are not based on probable cause.

Multi-step reverse location warrants can also be technical in nature. A neutral magistrate or judge, as well as law enforcement personnel, defer to Big Data technicians to properly tailor such warrant requests and the raw data resulting from the requests. 

The NYT examined initial warrants used the first-step of the geofence warrant process. Those warrants merely sited the fact that: a) most Americans have cell phones; and b) Google possessed location data for many of those phones.

Geofence Warrants Will Become A Pervasive Law Enforcement Technique.

Reverse location warrants are becoming a well-known jackpot among federal and state criminal investigators. In addition to the increased requests, it will not take long for law enforcement to overreach, placing the process squarely before the appellate courts, on its way to the SCOTUS.

Last year’s series of bombings around Austin, Texas presented a perfect opportunity to utilize geofence warrants. A series of geofence warrants for each bomb site would yield raw anonymous data pertaining to devices around those specific bombing locations at or about the time-frame of the explosions.

This data could then be mined for patterns of activity and for the presence of a common device appearing in several locations. Federal investigators could then bring the resources of the United States to bear on identifying the patterns or the commonly present devices.

This, of course, presumes that the bomber would be simple enough to have a geo-tracking device on his or her possession when committing these crimes. These days, however, try getting off the data grid. Data is collected when your phone is turned-off; when your vehicle is turned on; and with your every key-stroke tracked.

Even if a suspect does not carry a geo-tracking device, or has an older model vehicle not wired to the Internet, the presence of potential witnesses also can be identified. Some witnesses may not even realize they were near the scene of a crime until confronted by law enforcement investigators.

We here at the Law Blogger don't see these warrant requests going away anytime soon. Nor do we anticipate Google changing its stated policy of only providing information they are required by law to provide.

We Can Help.

Our criminal defense and appellate practices have provided us with decades of experience in such matters. If you or a family member are the subject of such a warrant request, or have intersected with law enforcement in any way, give us a call to discuss your options.
Post #625

Labels: , , , , , , , ,

Saturday, March 23, 2019

State Fines & Forfeitures May be Excessive

Last month, the SCOTUS ruled in Timbs v Indiana that a state's fine or forfeiture scheme may be excessive and thus unconstitutional under the 8th Amendment of the United States Constitution. This ruling means that persons convicted of crimes under state law, or found responsible under a municipal ordinance, can challenge the ultimate fine on the new-found constitutional grounds that the fine is excessive.

Tyson Timbs, an Indiana man, was convicted by his own plea of dealing in a controlled substance and conspiracy to commit theft. After he was arrested and charged, the police seized his Land Rover SUV for which he paid approximately $44,000. This forfeiture seemed unfair considering the express prohibition of excessive fines in the 8th Amendment.

Ill-Gotten Gains Can Be Forfeited

The uncontested facts in the case are that Timbs used proceeds he received from his father's life insurance policy to purchase the vehicle. One of the chief rationales underpinning state forfeiture laws is to punish felons for using ill-gotten gains to purchase assets that often assist them in their chosen criminal enterprise.

In this case, Timbs successfully challenged Indiana's forfeiture statute that allowed the state to attach his expensive Land Rover SUV. Timbs argued that the forfeiture was excessive relative to his drug conviction.

The state court agreed that taking the Land Rover was excessive considering that the maximum fine for heroin possession was less than 25% of the value of the vehicle. Of course, the State of Indiana appealed but the trial court was affirmed; the forfeiture was deemed excessive. At the Indiana Supreme Court, however, Timbs lost when the trial court and intermediate appellate court were reversed.

In granting certiorari, the SCOTUS examined whether the 8th Amendment's prohibition against "excessive fines". The 8th Amendment reads, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Application to States as well as the Federal Government

During oral argument in the case last November, Indiana's Solicitor General went toe-to-toe with Justices Gorsuch and Kavanaugh. Indiana argued that the 8th Amendment ban on "excessive fines" applied only to the federal government; not to the states. Gorsuch and Kavanaugh we not having it, asserting that in 2019, all of the rights contained in the Bill of Rights -the first 10 amendments to the Constitution- applied to states as well as to the federal government.

Indiana also asserted that a "forfeiture" was distinct from a fine or other sanction. The SCOTUS shot that argument down too, but on technical grounds. 

Justice Ruth Bader Ginsburg wrote the majority opinion, noting that the State of Indiana did not raise the forfeiture vs fine argument in its brief filed in the Indiana Supreme Court thus, it could not argue the point to the SCOTUS. We here at the Law Blogger are thinking that the proverbial heads rolled in Indianapolis over that non-preserved argument. The SCOTUS routinely avoids deciding weighty issues on technical grounds.

Whenever litigants pose weighty issues that can be decided narrowly, without a constitutional basis or rationale, the SCOTUS usually takes the bait and declines to make momentous constitutional decisions. 

Justice Ruth Bader Ginsburg's Opinion

This case was an example of this principle. In her opinion, Justice Ginsburg, having recovered from her lung operation, put together a veritable tour de force to frame the issue:
The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” "[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. When James II was overthrown in the Glorious Revolution, the  attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. [Citations omitted.]
Justice Ginsburg next examined several instances of state law schemes over the centuries and in more recent decades where fines seemed excessive, despite the 8th Amendment. She cited to the excessive post-Civil War fines in the South designed to subjugate newly freed slaves and maintain the racial hierarchy.

Citing the landmark case, Harmelin v Michigan, Justice Ginsburg continued:
For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” [Citations also omitted.]
Her opinion next focused on the 14th Amendment's Due Process clause, which requires that the Bill of Rights, the first 10 amendments to the U.S. Constitution, apply to the states. She rejected Indiana's argument that the forfeiture law was civil in nature and, as such, was not a fundamental right.

The bottom line: Indiana's civil forfeiture laws are invalidated. This holding has implications for forfeitures here in Michigan. Justices Gorsuch and Thomas concurred in the result but wrote separately.

We Can Help

We here at the Law Blogger have had many cases where, as a part of a felony arrest, cash, a vehicle, or other asset -even a house- was forfeited under Michigan's forfeiture statute. The SCOTUS' Timbs decision will now throw some shade on the forfeiture process here in Michigan.

If you or a family member have experienced an excessive fine or a similar forfeiture like in the Timbs case, contact our law firm for a free consultation. We can assess your legal options.

Post #623

Labels: , , , , , ,

Thursday, January 31, 2019

Arctic Man Goes to SCOTUS

As extreme sports go, Arctic Man must be a trip. To paraphrase Chief Justice John Roberts, when you put 10,000 mostly drunk people in the middle of nowhere, 8 cops are just not enough to keep the peace.

We here at the Law Blogger would add: the object of the event is to determine who can ski the fastest being pulled behind a snowmobile. Physical limitations and judgment come into play from the outset, to be sure.

Nevertheless, that was the situation in central Alaska that led to Nieves v Bartlett which has been winding its way to the SCOTUS for the past 4-years. The state troopers perhaps best set the stage in their petition for certiorari:
Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event.
On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.
Trooper Nieves asked Bartlett to identify himself and requested that he move a tapped keg inside his tent. Instead, Bartlett refused the trooper's commands exhibiting belligerent behavior toward the troopers.

In front of the troopers, Bartlett instructed the minor not to answer their questions; no parents or guardians of the boy were anywhere to be located.

Bartlett's conduct resulted in resisting arrest and disorderly person charges. When his criminal charges were dismissed, Bartlett filed suit against the troopers.

His separate civil rights law suit was filed in a federal court under 42 USC 1983; now, the case has made it all the way to the SCOTUS. Oral arguments were presented last November; a decision will be issued this spring.

This case is the latest in a series of what is known as "contempt of cop" or "retaliatory arrest" cases: an arrest based on an officer's perceived slight, with the occasional emphasis on the content of the accused's speech. The collateral civil litigation in Arctic Man claims that the subject of such an arrest was merely exercising his right to free speech under the First Amendment to the United States Constitution. To arrest someone under such circumstances, the claim goes, violates the speaker's fundamental right to free speech and thus constitutes an illegal seizure under the Constitution.

On the other hand, the petitioners, Alaska State Troopers, assert an age-old common law principle that law enforcement officers are immune from civil liability wherever probable cause to arrest exists. The troopers argue they had probable cause to arrest Bartlett on multiple charges thus, they are immune from his civil rights law suit.

The civil rights law at issue in the case, 42 USC 1983, provides a cause of action where a state actor, under the color of state law, subject a person to the deprivation of any right provided by the Constitution; in this case, the First Amendment and its attendant right to free speech.

How far can you go in your speech when interacting with a peace officer? Can you insult, challenge, disparage, offend, mischaracterize, or demean the officer?

Not to put too fine a point on it, but the precise issue argued at the SCOTUS was whether Bartlett, the declarant, had the affirmative duty in his civil lawsuit to demonstrate that the troopers lacked probable cause to make an arrest. Which party shoulders the burden of evidence production affects the trajectory of the case.

Alaska argues that under the civil rights statute, Bartlett must prove a negative [i.e. that no probable cause existed allowing the officers to intervene] or he must prove his arrest was executed pursuant to a municipal policy of retaliation.

The Troopers' reply brief frames the issue posed in this case, facing officers each and every day as they go about fulfilling their duties:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.
Of course, the officer must have the power to exercise his professional discretion to make an arrest in light of probable cause that a crime is being committed. Our safe society depends on this basic law enforcement power.

Against this tapestry is also the backdrop of the Roberts Court's vigorous protection of First Amendment freedom of speech, and its contrasting penchant to defer to law enforcement's discretion of how they do their job, assuming probable cause exists to intervene with the citizenry.

We here at the Law Blogger will anxiously await the Supreme Court's decision.

Post #623

Labels: , , , , , , ,