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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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Legal Rants

New York Tragedy: The Death of Kalief Browder

I wish I were writing this week about how the TSA misses 95% of weapons when screeners are covertly tested, how they “reassigned” the TSA acting director as a result, or how the TSA hired people on its own terror watch list as screeners. But since apparently no one actually is targeting our skies anymore (as clearly the TSA is not stopping anyone), the TSA is now merely a joke.

What’s not a joke is that a 22-year-old man is dead in New York, a suicide spurred by a systematic violation of his rights by the courts, “New York’s Boldest” (The NYC Department of Corrections), and the Bronx District Attorney’s Office. Kalief Browder was arrested when he was just 16 years old, accused of stealing a backpack. He plead not guilty and asked for a speedy trial, but because of delays by the NYC DA’s office, he was held for 3 years without trial before a judge told the city they had to let him go. A total of 31 court dates were scheduled, most resulting in an adjournment at the DA’s office’s request.

If that’s not bad enough, he experienced significant abuse and neglect on Rikers Island, the notorious NYC jail. Video taped beatings by guards, absurdly long stints in seclusion in solitary confinement, and abuse by his fellow inmates were this man’s life for more than 1,000 days without being convicted of a crime. While there is evidence that he may not have committed the crime in the first place, he likely would have served months — or less — had he merely plead guilty. Traumatized by his experience and struggling to integrate back into society after having those pivotal years taken from him, he took his own life last Saturday.

What does it say about our justice system that asking for a trial can result in spending more time in jail than pleading guilty, even if the result of the trial is a not guilty finding? What kind of judge refuses to release this man on a reasonable bail (or on his own recognizance) once they realize, “Hey! He’s already been in jail longer than we’d keep him if he were tried and convicted?!” What kind of DA postpones a man’s fate dozens of times because he can’t manage to prepare for a simple trial over 36 months? And where did our constitutional right to a speedy trial go??

Amendment VI – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

I hope there will be protests — I will be there. In the meantime, if you’d like to express your thoughts on the matter: Robert T. Johnson, Bronx District Attorney, 198 East 161st Street, Bronx, NY 10451, ph: 718-590-2312, fax: 718-590-2198, angueirl@bronxda.nyc.gov

Federal Judge: No, you can’t search people’s laptops at the border for no reason.

At least as far as a forensic search (more than just turning it on and having a quick look) goes. In 2012, Homeland Security was conducting an investigation based on a jailhouse informant who said that Jae Shik Kim was involved in a 2008 crime. So, they did some investigating, found incriminating details, and applied for a search warrant. No, of course not, that would be too much work. Instead, they waited until Mr. Kim was crossing the border on an international flight and seized his laptop with no warrant an no more evidence than the tip, under the Obama administration’s “I do what I want!” policy regarding searching electronic devices at the border (scroll down to item 5.1.2 for what CBP thinks is lawful).

U.S. District Judge Amy B. Jackson has finally issued the government a long overdue smack-down in this regard. While her ruling is based on the particularly egregious circumstances of this case (waiting for someone to leave in order to get around a warrant, seizing the laptop without searching it and transporting it to be imaged and forensically analyzed, the flimsy tip, and the lack of any allegation of a current crime), she resoundingly rejects CBP’s assertion that it needs no suspicion to do whatever it wants at the border regarding digital devices.

Good on you, Ms. Jackson.

Texas Cops Rape Woman On Side of Road, Again, 18 Months After Paying $185,000 Settlement

Texas Cops Rape Woman On Side of RoadThere is a competition out there for worst policing in this country. New York has random searches without cause (cause… you know, the thing required by the 4th Amendment) known as “stop-and-frisk” (now replaced by sitting around and doing nothing in protest of the mayor refusing to grant them permission to brutalize protesters and other minorities). The heartland and midwest are the epicenter of random acts of civil forfeiture — cops confiscating cash from motorists because it “must be” drug money. Florida has a problem with law enforcement killing those in custody, refusing to investigate, and getting testy when someone decides that outside investigations are necessary.

But then there’s Texas, where police assholery is Texas-sized.

About a year and a half ago, a story broke where two women were “cavity searched” on the side of the road on suspicion of having drugs. That suspicion was based on no actual evidence, of course — just “a hunch” by the officers, which proved to be mistaken. A female police officer literally bent these women over on the side of the road and placed her fingers inside of these women’s vaginas (and no, she didn’t even have courtesy to change gloves between the two searches). The state settled a lawsuit for $185,000, and a grand jury indicted the female officer. She eventually plead guilty and was sentenced to a slap on the wrist.

Did Texas learn their lesson? Of course not, they just did it again.

Guys Sue Red Bull Because It Didn’t “Give Them Wings”

One of the things I hate, and pretty much every non-lawyer hates, about the legal system is that at the end of the day, the only real winners are the lawyers, who bill $250 – $1,000+ per hour to fight over what is often an absurd battle. Take, for example, Careathers v. Red Bull:

Benjamin Careathers, a regular consumer of the fizzy drink, sued the company for false advertising, arguing that after 10 years drinking Red Bull he neither had wings nor any enhanced athletic or intellectual performance.

Source: The Telegraph

Now, I love Red Bull. I drink it all the time, and I follow their marketing campaigns because they are brilliant, so I’m interested as a businessman, and because they’re fun, so I’m interested as a consumer. Red Bull sponsors events all over the world, including their very own “Flugtag” event, and they have their catchy, “Red Bull Gives You Wings” tag line. But, as a consumer, I never expected to be “given wings,” nor did I believe any of the other stuff the lawsuit claims, such as their assertion that Red Bull misled consumers into thinking that Red Bull was scientifically proven to be superior to its competition. No, I buy Red Bull because I like it, not because I am delusional.

The case was certified as a class action, with the class being every Red Bull consumer since 2002. Red Bull has decided to settle this case rather than fight (by giving every customer $10 of free Red Bull), which brings us to the real reason for this suit, of course: the lawyers are asking for a $4.75 million dollar fee. I’m disappointed that Red Bull didn’t fight this battle, but totally understand that it’s a “cheap” (comparatively) way to make them go away and almost acts as a promo in itself as people rush to get their free 4-pack.

Luckily, as a member of the settlement class, I get to express my disappointment to the court, and will be filing my objection to the Red Bull settlement on Monday. Will this actually change anything? Probably not on its own, but courts have been known to reduce fees when finalizing settlements on class actions, so I hope my objection will weigh on that.

Life Lesson for a Civil Rights Advocate: You Can’t Fix Everything

One of the most difficult things I’ve found about doing civil rights advocacy is this: there are so many things wrong in this country, and you can’t make time to fight them all. Once you learn that it is, in fact, possible to challenge the injustices in this world (and that many times, if you don’t challenge them, no one else does), it becomes far too tempting to just take on another issue. When Edward Snowden’s revelations about the NSA came out, for example, it took all my willpower to not write up a lawsuit. (I couldn’t resist having a little fun, and created a Web site for people to request their NSA file called My NSA Records, but no legal challenges from me.)

If one takes on too many challenges, sufficient focus to complete any of the challenges will be lost. Indeed, sufficient focus to maintain the rest of your life can become lost as well, especially if you’re working a full-time job in addition to fighting the man (if anyone would like to sponsor a full-time civil rights advocate, let me know!).

The same goes for continuing current cases when they’ve lost meaning. My case against NYPD stop-and-frisk was dismissed last month after a judge ruled that I couldn’t prove that I was dealing with actual police officers. Four men, who looked like cops, in a dark sedan that looked like an undercover cop car (complete with console electronics) identified themselves as police, detained me, searched me with neither consent nor cause, and then let me go without taking anything. I didn’t ask for a badge because I thought I’d get a face full of sidewalk and because I had no doubt that these men were real cops, but the city claims they have no record of cops being there.

It makes no sense that these men were just random troublemakers looking to pat down random people on the street, and I believe the judge made a clear error in determining that no reasonable jury could find that the NYPD was responsible for my constitutional injury. But, taking that argument to the Court of Appeals, I believe, will take my focus off of the cases that are more important to me — my work against the TSA — and in light of the fact that stop-and-frisk was recently ruled unconstitutional in another case, I’ve decided it would be a distraction with minimal benefit. The war on stop-and-frisk has, hopefully, already been won.

The people who are the best at what they do are the best because they have the sharpest focus. They know what they want and they work every day to get it. I shall continue to sharpen my focus on the issues that are really important to me.

Consumer Finance Protection Bureau: Protecting Consumers or Banks?

A bit off topic, but I just can’t resist blogging about any useless or counterproductive federal agency.

A couple weeks ago, my gym membership dues hit one of my debit cards and overdrafted one of my checking accounts (the perils of having more than one account, it seems, is that occasionally one ends up empty… but I digress…). This shocked me, since federal rules that went into effect in 2010 bar debit overdrafting and associated fees without an explicit opt-in, which there’s not a chance I would give. I called my bank and asked if they enjoyed flouting federal rules, to which they replied that these rules only apply to “one-time” transactions and my gym membership doesn’t count.

A quick review of the rules shows that they are correct that these rules apply only to “one-time” transactions, but there’s no definition of “one-time.” Debit card transactions aren’t “scheduled” with the banks or anything — merchants process them as agreed whenever they get around to it, so really, every transaction, in my opinion, is “one-time.” So where is the line drawn? If I go to a restaurant twice and use the same card, is that no longer one-time? Does it have to be on regular intervals or a specific number of instances?

The agency responsible for the rule gets the first pass at defining the ambiguous (that is, courts give “deference” to an agency as to the interpretation of their own rules, so long as that interpretation isn’t absurd). So I asked the agency responsbile for the rule: while original the rule was issued by the Federal Reserve, authority for the rule was passed on to the Consumer Finance Protection Bureau upon its creation in 2011. So I e-mailed the agency asking for their interpretation of “one-time,” and was surprised to get a fast response from an attorney for the agency who asked me to call him to discuss. I politely declined, explaining that I’d prefer it by e-mail such that I could forward a copy on to my bank if the interpretation was useful for the return of my $35 overdraft fee.

nowrittenHere’s where it gets weird (well, weirder than a government agency that’s actually responsive other than when they want your money): The CFPB attorney refused to tell me the agency’s interpretation in writing. At first I’m told that “informal” guidance can’t be given in writing, and upon asking how to get formal guidance, I was told that individuals can’t.

So if consumers can’t get informal guidance in writing or formal guidance at all, who is this “Consumer” Finance “Protection” Bureau protecting? Is this another one of those, “we’ll protect the people by protecting the financial institutions” type things? Too big to fail, too big to jail, and too big to talk about in writing (unless, of course, they request it). Naturally, they picked the wrong person to refuse — I’ll be continuing my query via Freedom of Information Act requests until I have my answer.

Stay tuned tomorrow for the start of our 30-part series, “No Surveillance State Month,” where daily for the month of June I’ll be posting ways to avoid invasion of your privacy in the digital age.

Miami: Taking Pictures? We’ll Question You.

If this blog interests you, chances are you follow other news sources that have covered attempts by police and other government officials (including, of course, TSA screeners) to crack down on citizens that use their cell phone cameras to record the activity of those government officials. Carlos Miller, a Miami-based photographer and activist, formed Photography is Not a Crime (PINAC) after being detained (now on several occasions) for an even less confrontational reason: capturing photos and video of buildings and transportation hubs. PINAC covers stories of people being denied their First Amendment rights at an astounding frequency: the front page of PINAC has 8 stories from the last 12 days alone.

Carlos’ most recent personal interaction was on Miami’s Metrorail system, where he was pushed down an escalator and arrested by security for no more than taking pictures from the platform while he waited for his train — and this wasn’t even the first time the same security company — “50 State” — arrested him for the same reason!

Being a Miami resident myself, I contacted county officials to express that I no longer felt safe on the county’s public transit as a result of the abuse of this security contracor. (I also contacted state officials to request a review of 50 State’s license to act as a security firm and the individual guards’ licenses to open carry a firearm as a security officer.) After significant back-and-forth and many ignored messages that required follow-up, the last message I received was from Eric Muntan, Chief of the Office of Safety and Security of Miami-Dade Transit:

First and foremost, MDT fully acknowledges that members of the public can take photographs in the common areas of public facilities. Areas within the public view are open to photography, as long as the activities do not present a safety concern for transit operations.

At the conclusion of its investigation of this incident, MDT took numerous administrative actions to effectively address areas which needed enhancements, to include, but not limited to, immediate refresher training for all MDT-contracted security officers regarding the proper interpretation of commercial photography and an individual’s right to photograph common areas of our facilities.

However, given the threats against mass transit systems, both domestic and abroad, and in order to protect the safety of its transit system, its customers and its employees, MDT reserves the right to question individuals taking photographic images at our stations.

However, that stance may not actually be lawful. The police have great leeway to ask questions of nearly anyone (so long as those people are not obligated to answer and are “free to go”). However, they still can’t do so in an arbitrary or capricious manner: they need a reason — however flimsy — to do so. Virtually any reason will do, except a reason that rests upon violating someone’s rights. And, if the county is admitting that it your right to take pictures (which it is), it would seem to me that they would need a reason beyond the mere taking of pictures.

It is nice that Miami is taking at least some steps (retraining, for example) to remedy the problem, but in the end, the problem won’t go away until the mindset is changed: holding a camera should not subject you to any government contact in and of itself.

DHS Purchases 2,700 Tanks for Domestic Use

http://www.thegatewaypundit.com/2013/03/obama-dhs-purchases-2700-light-armored-tanks-to-go-with-their-1-6-billion-bullet-stockpile/

If we do not start making changes now, you will see these in your neighborhood. Again, that timeframe to act is now. Please share, call your reps (much harder to ignore phone calls than e-mails), and demand change.

Update: Judge Who Jailed Teen for Disrespect Famous for Fighting on Floor of Fla. Legislature

[Update to the Update: The Miami-Herald Runs This Story]

[Update to the Update to the Update: Penelope has been freed after apologizing to the court.]

It turns out that the judge from my previous post who deemed it proper to deny a teen girl an attorney for her arraignment, deny her an attorney for future proceedings (“sell your jewelry!”), raise her bond because she had an attitude, and then jail her for 30 days after she lost it and gave him the middle finger, became famous for his lack of ability to control his own temper. Back 15 years ago, Judge Jorge Rodriguez-Chomat made headlines for attacking a fellow legislator on the floor of the Florida House of Representatives. He, of course, was not sent to jail to “learn his lesson.”

It’s interesting that Jorge, who seems to be of Latin descent and speaks with a heavy accent despite being in the U.S. most of his life, seems to have a thing against others of Latin descent. The man he attacked on the House floor was also Latin, and he only flipped out on the teen girl — a Latina — in his court after she said “adios.” This guy seems to have some issues.

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