Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

Justice Department to Monitor U.S. polls

Protecting the integrity of our democracy, via the Washington Post:

The Justice Department announced Friday that its Civil Rights Division plans to send nearly 800 staff and observers to 51 jurisdictions in 23 states for Tuesday’s election. This has been standard practice since passage of the Voting Rights Act of 1965, which bars discrimination in elections.

Some of the localities to be observed are in states covered under Section 5 of the law, which requires jurisdictions with a history of discriminatory voting practices to receive prior approval or “preclearance” before making changes in elections laws. They are Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia and Alaska, along with parts of Florida, Georgia, California, New York, North Carolina, South Dakota, Michigan and New Hampshire.

The department’s list of places to be observed Tuesday also includes four Ohio counties: Cuyahoga (Cleveland) Hamilton (Cincinnati) Franklin (Columbus) and Lorain.

Jay-Z, 99 Problems, the 4th Amendment and your Locked Trunk

Professor Caleb Mason of Southwestern Law School, in a Saint Louis University Law Journal article, “JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS,” analyzes the legal issues in Jay-Z’s hip-hop hit, 99 Problems.

99 Problems is a song by Jay-Z. It’s a good song. It was a big hit in 2004. I’m writing about it now because it’s time we added it to the canon of criminal procedure pedagogy. In one compact, teachable verse (Verse 2), the song forces us to think about traffic stops, vehicle searches, drug smuggling, probable cause, and racial profiling, and it beautifully tees up my favorite pedagogical heuristic: life lessons for cops and robbers. And as it turns out, I’m not late to the game after all: Jay-Z recently published a well-received volume of criticism and commentary that includes his own marginal notes on Verse 2 of 99 Problems.

When I teach the Fourth Amendment, I ask my students what the doctrines tell us about, on the one hand, how to catch bad guys and not risk suppression, and on the other, how to avoid capture or at least beat the rap if not the ride. I’m always happy to tell my own stories, but the song struck me as the perfect teaching tool. All the students know it, and importantly for pedagogical purposes, it gets some things right—and some things very wrong.

It turns out that, while some other law professors have noticed 99 Problems, no one has yet provided a detailed, accurate analysis of the Fourth Amendment issues Verse 2 raises. In this Essay, I remedy that deficiency in the literature. This is, after all, one of the most popular songs of the last decade, and we should seize the opportunity to use it in our teaching. My audience, accordingly, is primarily teachers and students of criminal procedure, but I hope that my comments may be of some interest to cops and perps as well.

Read the full article here.

Play dealing with Marriage Equality and Medical Malpractice debuts at Trinity Rep

Love Alone, a timely play, debuts this week at Trinity Rep on March 16th and runs through May 27, 2012.  Check the play out on Facebook here.

The play deals head-on with marriage equality and medical malpractice by telling a fictional story of what happens when a routine procedure goes tragically wrong. In light of Rhode Island’s 2010 civil union bill and the current bill before the House to allow doctors to say “I’m sorry” for medical negligence, Love Alone couldn’t be more relevant.

Internationally awarded playwright Deborah Salem Smith is the author of Love Alone and the playwright-in-residence at Trinity Repertory Company in Providence. She has a personal connection to the subject matter in that her partner of 14 years is a doctor and her father-in-law is an attorney who represents patients and hospitals in medical malpractice lawsuits.

Love Alone was among 19 plays in the nation to be awarded a prestigious Edgerton Foundation New American Play Award and received an honorable mention from the Jane Chambers Award, the country’s premier women’s playwriting award. Recognized for its exploration of the complex human emotions experienced by those involved in medical error, Love Alone paints a loving portrait about how we grieve and how we heal.

Smith’s previous honors include an Emerging American Artist Fulbright for playwriting in Dublin, Ireland, where she worked with the Abbey Theatre, Ireland’s national theatre. Smith’s work has been recognized by a National Mellon Fellowship in the Humanities, a MacDowell Fellowship, a Colby Fellowship, a Major Hopwood Award, as well as writing and visual arts prizes from the University of Michigan and Princeton University. Her previous plays, which have been deemed “luminous, intelligent, provocative and deeply moving,” by The Boston Globe, include Boots on the Ground, Some Things Are Private, Good Business, and Caviar.

Martha Minnow to Speak at Roger Williams Law School

Roger Williams University School of Law will be hosting their annual Thurgood Marshall Memorial Lecture on April 3 and have a great speaker lined up.

Harvard Law School Dean and Professor Martha Minnow will lecture on “Pursuing Justice in Multicultural Societies: Gender, Religion, Conflict and Compromise.”

The event is Tuesday, April 3, 2012 from 4:00 – 5:00 p.m. in the Roger Williams University School of Law Appellate Courtroom 283 located at Ten Metacom Avenue, Bristol, Rhode Island. There will be a reception immediately following lecture. Space is limited. Reservations are required. Please contact the Office of Alumni, Programs & Events at lawevents@rwu.edu or 401-254-4659.

The School of Law presents its fifth lecture in this series, which honors the memory of Thurgood Marshall, a key architect of the legal strategy that convinced the Supreme Court to declare unconstitutional the doctrine of “separate but equal,” which had allowed racial segregation in public education and many other aspects of American life. Thurgood Marshall later served with distinction and as a protector of civil rights as Solicitor General of the United States and as the first African-American Justice on the United States Supreme Court.

The event is sponsored by Hinckley Allen Snyder LLP.

3rd Circuit Strikes Down Anti-Immigrant Law in Hazleton

The ACLU’s Blog of Rights reports that the 3rd Circuit Court of Appeals found the city of Hazleton, Pennsylvania’s anti-immigrant laws unconstitutional.

In August 2006, the city of Hazleton passed a law that would punish landlords and employers accused of renting to or hiring anyone the city deems an “illegal alien.” We challenged that law in district court and won in 2007, and the city of Hazleton appealed that ruling to the 3rd Circuit.

Hazleton’s law spawned several copycat measures in other places, including Arizona, so the case has attracted very close interest from supporters of such discriminatory laws as well as their opponents. In today’s unanimous opinion, the court stated that it was “required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress.” The Hazleton law, the court said, “attempted to usurp authority that the Constitution has placed beyond the vicissitudes of local governments” and “could not possibly be in greater conflict with Congress’s intent” as reflected in federal law.

This decision comes on the heels of a recent legal victory against S.B. 1070, the racial profiling law law passed in Arizona this summer.

Details of Temporary Injunction against parts of Arizona Immigration Law

Yesterday, federal district court Judge Susan Bolton ruled on the United States Department of Justice’s motion for a preliminary injunction preventing enforcement of Arizona’s SB 1070.  Her 36-page opinion largely grants the injunction against the bill’s most noxious elements: Sections 2b, 5c, & 6 of the law.

The following sections have been temporarily enjoined:

• Reasonable Suspicion – requires police to verify someone’s documentation status based on “reasonable suspicion.”
• Papers – makes it a crime to fail to apply for or carry registration papers.
• Seeking employment – makes it a crime for undocumented people to solicit, apply for, or perform any work.

However, the following sections of the law were not enjoined and went into effect today

• Limitations of Enforcement – Preventing cities and agencies from limiting enforcement of federal, requiring collaboration with federal authorities, and allowing any resident to sue any agency that adopts a policy that limits enforcement of federal immigration laws.
• Day Laborers – Makes picking up a day laborer or entering a car as a day laborer in a way that impedes traffic into a crime.
• Transport & Harboring – Makes it a crime to transport or harbor anyone unlawfully in the U.S. and empowers police to impound vehicles of anyone charged with doing so.
• Gang & Immigration – Creates a fund for “gang and immigration intelligence team enforcement.”  No profiling here, for sure.

The Arizona Governor has indicated that the State will file an appeal with the Ninth Circuit.

Washington Post Calls for “Uncompromising” Probe into New Orleans Police Shootings.

The Washington Post correctly editorializes the following:

“A van full of police screeches to a halt on a New Orleans bridge, just days after Hurricane Katrina has devastated the city. The officers open fire on civilians, killing two and seriously wounding four. They and fellow officers try to cover up the crimes by planting guns at the scene, fabricating witness statements and falsifying police reports to claim that the civilians shot first. This series of events is almost beyond belief, yet a recently unsealed federal indictment claims that this is exactly what a crew of New Orleans police officers did. If true, these are crimes for which the defendants should be sentenced to the maximum penalty.”

[New Orleans Mayor Mitch Landrieu] “wisely reached out to the Justice Department this year and all but implored it to conduct a top-to-bottom review of all functions and policies. The department is conducting such an investigation. The probe should be thorough and uncompromising.”

RI Federal Court Weighs Lawsuit Involving Police Shooting of Mentally Disabled Pawtucket Man

One of four mentally disabled Rhode Islanders who was seriously injured or killed by police officers in 2007-2009 made his case in federal court last week.

The Providence Journal reports that Judge William E. Smith heard arguments from lawyers from the City of Pawtucket and Max Wistow, the lawyer for the family of Jason Swift- the 30 year old man who was shot to death on February 12, 2008 by Officer Wallace H. Martin in the apartment of Swift’s mother on Lupine Street.

The City of Pawtucket is asking the Judge to dismiss the lawsuit on the theory that the plaintiff is unable to show that the city’s failure to train and supervise its police officers in properly dealing with mentally disabled people such as Swift rose to the level of “deliberate indifference.”

Max Wistow, the family’s lawyer, disagreed. He cited a police manual that mentioned “grave consequences” if officers didn’t take care in dealing with emotionally disturbed people and said even if no one had been shot in the city before in such a situation, it’s happened enough times around the country that a responsible department would have taken steps to train its staff.

He also cited a deposition from Chief George L. Kelley III, in which Kelley said the department wasn’t going to examine the case for possible discipline until the civil case ended, and possibly even wait until any appeals were resolved.

Wistow said that could take years and was evidence of the department’s indifference to the seriousness of the issue. He compared it to a hospital with a doctor whose patient died under his care. It would not wait years until the malpractice suit was over to examine the case, he said.

If you or someone you know has been a victim of police brutality in Rhode Island or Massachusetts, contact a lawyer today.

Closing the Justice Gap for Pro Se Litigants

The New Hampshire Chief Justice, John T. Broderick Jr., and the California Chief Justice, Ronald M. George, offer a compelling Opinion piece in the New York Times in regards to the growing number of pro se litigants in the legal system:

As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need.

As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. California took a major step forward in October when it became the first state to recognize as a goal the right to counsel in certain civil cases. (The state also committed to a pilot project, financed by court fees, to provide lawyers for low-income citizens in cases where basic human needs are at stake.)

But this is only a beginning. It is essential that we promote other efforts to close the “justice gap.”

One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities.

Justice for Eric Frimpong

Will the Appeals Court agree with Joel Engel?  I hope so.

After spending much of the last two years researching the 2007 trial of Eric Frimpong for rape, journalist and author Joel Engel believes that the former UCSB soccer player was wrongly convicted. This article is the result of the 6,000 hours of unpaid research he and his uncle did for Frimpong’s appellate team, and represents solely his opinions on the matter. Frimpong’s case is currently under appeal, and a decision is expected soon.

I used to think that even bad cops lied only about the worst bad guys. I believed most prosecutors tried only defendants they considered guilty beyond reasonable doubt. And I assumed that highly paid defense attorneys, aware that someone’s freedom was at stake, carefully prepared their cases before walking into court.

Then I met Eric Frimpong.

Six years in state prison.  Remember that’s six more years than the Duke players got.  Of course, in this case, a black man is accused of raping a white woman with an all white jury.

I urge you to visit the Eric Frimpong Freedom Fund and read his story.  And donate.  And forward this site onto your friends. Justice denied is never stopped without the will of the people making it so.

Also, you can join me in buying a t-shirt in support of Eric Frimpong.  Every single dollar from the sale will go to the Frimpong Freedom Fund.  Click here to buy.

NYTimes Urges Corrections to Iqbal Ruling

The New York Times correctly editorialized that changes need to be made in the wake of the Supreme Court’s ruling in Ashcroft v. Iqbal ruling:

In a lamentable 5-to-4 decision earlier this year, the Supreme Court discarded 50 years of legal precedent to make it significantly harder for Americans to assert their legal rights in federal court.

The ruling, in the case of Ashcroft v. Iqbal, involved a Muslim man swept up on immigrations charges after the Sept. 11 attacks. The court’s conservative majority decided that he could not sue the high-ranking federal officials he deemed responsible for setting the policies behind the terrible abuse he said he suffered in detention.

But the ruling’s damage went beyond the case or the national security sphere. The court altered the procedural rules for initiating a lawsuit, raising the bar in a fashion destined to make it far harder to bring valid actions and to allow wrongdoers to avoid accountability.

For decades, a plaintiff filing a lawsuit needed to file only a short, clear statement of his claim and its legal grounds. That standard recognized that much of the evidence needed to prove claims may be in the hands of the defendant and not available before the pretrial discovery process. The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court’s new regimen, judges must assess the “plausibility” of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.

The practical impact in, say, an employment discrimination case, is to disadvantage the wronged employee, who is unlikely to have access at the outset to the records needed to prove wrongful conduct. Testifying at a Senate Judiciary Committee hearing earlier this month, John Payton, the president of the NAACP Legal Defense and Education Fund, expressed doubt that some of the major cases of the civil rights era could have survived the heightened standard. The courts have already applied Iqbal to dismiss numerous lawsuits prematurely.

Representative Jerrold Nadler, a Democrat of New York, has introduced corrective legislation in the House. Senator Arlen Specter, a Pennsylvania Democrat, has introduced another bill targeting the problem. It is the responsibility of Congress to reopen the courthouse doors.

Judge Upholds Controversial Search of Central Falls Soccer Players

U.S. District Judge William E. Smith recently ruled that Coventry police officers who searched a bus full of Central Falls soccer players for stolen cell phones and iPods were protected by qualified immunity according to a report in the Providence Journal.

The soccer game ended in a tie three years ago, but what unfolded next was a search by Coventry police officers before jeering onlookers of visiting Central Falls players accused of stealing cell phones and iPods. The officers’ search turned up nothing.

Eleven of those players filed suit in federal court, alleging the police violated their right to be free from unreasonable searches, invaded their privacy and amounted to racial profiling and ethnic intimidation.

In his ruling, U.S. District Judge William E. Smith said he was dismayed and disappointed by the officers’ lack of professional judgment and the appalling actions of the crowd. But, he said, the officers were protected by qualified immunity, which shields government officials from liability as long as their conduct does not violate rights of which any reasonable person would have known.

The players, who are no longer in school, appealed to the 1st U.S. Circuit Court of Appeals last week.

…The varsity soccer game between Central Falls and Coventry had just ended in a 2-2 tie. Six Central Falls players used the bathrooms in the boys’ locker room as a security guard looked on. Coach Bobby Marchand sent the players to the bus, where they were met by about 20 Coventry football players who swore as they accused the Central Falls players of stealing the iPods. The coach said he would get to the bottom of it and spent about 25 minutes searching the players’ bags. None of the missing items was found.

The crowd, by this time, grew to 50. They shouted derogatory and racist remarks and threatened not to leave until the items were found.

Four Coventry police officers arrived and boxed the bus in. The topic of whether the police could conduct their own search arose; Marchand consented. He later testified he felt compelled to do so under the circumstances.

The officers ordered the players to exit the bus with their belongings and stand with their backs against the bus as the crowd continued to shout racial epithets and accusations. The police ordered each player to step forward with his bag. The officers searched the bags and held each cell phone or iPod found up for the purported “victims” to identify, the ruling states.

Smith found that the officers were shielded by qualified immunity but that “it was a close call as to whether a constitutional violation occurred.”

“And,” he wrote, “it is undisputed that the police did not have a search warrant and the search of the boys was not supported by probable cause.”

The opinion is here.

Connecticut Lawsuit Alleges Retaliation in ICE Raid

The American Association for Justice reports that residents of New Haven, Connecticut, with the assistance of the Legal Services Office of Yale University, have filed a lawsuit against U.S. Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security, charging that ICE agents violated their civil rights in a June 2007 raid in which 29 people were arrested and detained.

According to the complaint, about 20 ICE agents swept through the predominantly Latino neighborhood of Fair Haven, without search warrants or probable cause, and arrested people “based on their skin color and physical appearance.” Fair Haven residents caught up in the early-morning raid were detained without legal counsel and without being informed of their rights, they allege. Some were locked up for weeks.

Plaintiff José Solan-Yangua said in a statement that he was “terrified and humiliated” during the raid. “We are bringing this suit because we refuse to let our families and community live in fear,” he said.

The raids were conducted under an ICE program known as the National Fugitive Operations Program, which was designed to find dangerous fugitives who do not have legal immigration status. According to the lawsuit, agents have strict quotas for arrest numbers, and when the agents in Connecticut failed to meet these quotas, senior ICE officials “amended the program to permit individual teams to count arrests of nondangerous, noncriminal nonfugitives—in other words, bystanders—toward their annual quotas.”

In addition to violations of the residents’ Fourth and Fifth Amendment rights, the suit alleges that the ICE agents violated the Tenth Amendment because the raid was retaliatory and represented federal interference in a local government’s right to self-regulate. Shortly before the raid, New Haven Mayor John DeStefano Jr. had approved a program called the Elm City Resident Card, the first municipal resident card in the country, which federal authorities viewed as a threat to their authority, the lawsuit claims.

The card—which functions as an identification card, library card, debit card, access card for city parks and pools, and a way to pay parking meters—is issued to all residents of New Haven, regardless of their immigration status.

According to the lawsuit, ICE responded by raiding the Fair Haven community two days after the card was approved by the city’s Board of Aldermen. DeStefano told the New York Times that he had no doubt the raid was a response to the card program.

The case is Diaz-Bernal v. Dept. of Homeland Sec., No. 3:09-CV-01734 (D.Conn. filed Oct. 28, 2009).

RIP Doris “Dobby” Brin Walker

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor and political activists.