Sui Generis--a New York law blog

Does Spitzer's New DNA Database Proposal Make Sense?

An article that I highlighted in today's legal news round up caught my attention--the New York Times article about Governor Spitzer's new plan to expand New York's DNA database.

From the article:

The governor’s proposal would order DNA taken from those found guilty of any misdemeanor, including minor drug offenses, harassment or unauthorized use of a credit card, according to a draft of his bill. It would not cover offenses considered violations, like disorderly conduct.

In expanding its database to include all felonies and misdemeanors, New York would be nearly alone, although a handful of states collect DNA from some defendants upon arrest, even before conviction...

The bill would make it easier for prisoners and defendants to obtain court orders to have their DNA tested against evidence collected in their cases and to have that evidence tested against the entire database of DNA, aides to the governor said.

It also would allow prisoners who have pleaded guilty to seek DNA testing that might prove them innocent, the aides said; some judges now decline such requests.

For the most part, I've been a big fan of much of the legislative initiatives of our new governor.  But, on this one, he's showing his prosecutorial stripes.   

The idea that the State will possess the DNA of everyone convicted of a felony and misdemeanor is alarming, to say the least.  The civil rights implications of this bill are huge.   

I'm sure that everyone reading this blog is relatively close with at least one person who has been convicted of a misdemeanor.  People of all walks of life have run ins with the law at some point in their lives. The alleged risk posed by one-time misdemeanor offenders does not warrant the extreme intrusion of the collection and storage of their DNA.

While the premise underlying the section of the proposed legislation that would make it easier for prisoners to obtain Court Orders to prove their innocence via DNA is certainly admirable, it's just a red herring as far as I'm concerned.

If the true motivation was to make it easier for the innocent to prove their innocence, then why not simply propose legislation focused on that goal alone?  Well, gee--because that's just a carrot being dangled in front of the "liberal" defense bar in an attempt to distract us with bright, shiny objects.

Nice try, Governor.  While I approve of much of what you've done thus far, this particular proposal does not impress me, shiny as it may be.  As a working mother, I'm easily distracted, but it's gonna require more than a little orange carrot tacked onto Big Brother-esque legislation to do so.

Third Department Considers Whether Qualified Immunity Shielded Defendants

Colao v Mills, 2007 NY Slip Op 03230, is a Third Department case wherein the plaintiff commenced a 1983 action alleging that the defendant sheriffs unlawfully searched and seized his home and property in violation of the 4th Amendment. 

The defendants responded to a 911 call from the plaintiff's girlfriend on the date in question.  She indicated that  the plaintiff had weapons and alcohol in his residence and that he was chasing her and wanted to kill her. She requested assistance in entering the plaintiff's home and retrieving her belongings.  When the deputies arrived, she was no longer there.  There was clearly evidence of a struggle, and the plaintiff alleged that his girlfriend had run away up the driveway.

Up to 5 officers remained on his property for several hours while they searched for his girlfriend and used his telephone a number of times.  There was some dispute as to whether he consented to allow them to search his home.  His girlfriend was located alive the next day.  He subsequently brought this action.

At issue was whether the defendants were entitled to qualified immunity thus shielding them from liability for their actions on the evening in question.   In reaching its determination, the Court first explained the applicable legal standards:

Government officials performing discretionary functions are entitled to qualified immunity, thereby shielding them from civil liability, as long as their actions did not violate the plaintiff's clearly established legal rights; it must be objectively reasonable for the defendants to have believed that their conduct as related to the plaintiff was lawful under the circumstances...The two parts of this inquiry are whether plaintiff suffered a constitutional violation at the hands of defendants and, if so, whether the constitutional right was clearly established at the time so that any reasonable officer would clearly recognize that his or her conduct was unlawful in that situation...Immunity should ordinarily be determined by the court as a matter of law early in the case.  (Internal citations omitted).

The Court then considered whether the exigent circumstances exception to the 4th Amendment applied to the defendants' actions.  The Court concluded that it was applicable in this case:

It was objectively reasonable for police officers possessing this information to believe that Bergman could be inside plaintiff's house, she could be injured and they needed to find her quickly. Under the circumstances, defendants were justified in entering plaintiff's home and searching for Bergman...

The Court then stated that it was unable to determine as a matter of law whether the defendants exceeded the scope of their authority by remaining on the property for several hours, but concluded that qualified immunity protected them nevertheless since "even assuming that defendants exceeded the scope of the emergency and thus violated plaintiff's constitutional rights by remaining on his property and answering his phone, a rational jury could not find that defendants' judgment in this regard "was so flawed that no reasonable officer would have made a similar choice..."

Under the circumstances of this case, I'm inclined to agree with the Court.  Given the evidence of a struggle, had the officers simply taken the plaintiff's word as to what had happened without investigating further, they'd have been in awfully deep the next day had she turned up severely injured, or even dead.  In my opinion, the deputies' actions were reasonable under the circumstances.

Civil Rights Round Up

It's been a while since my last civil rights round up, and a lot of interesting things have happened in the interim.  So, let's get started:

• The NYPD conducts an awful lot of stop and frisks--508,540 people last year alone, up from 97,296 in 2002.  And, guess what?  More than half of those stopped were black.  Go figure. (NY Times via TalkLeft)
• Woman's Lawsuit Threatens To Remove Red-Light Cameras--A lawyer brings a lawsuit on behalf of his wife challenging red-light cameras on the  grounds that they deny the alleged offenders due process of law.  Fight the power, my man!  (Yahoo)
• Body Cavity Search Takes a Turn for the Worse--During a rectal exam, immigration officers "unknowingly" pull out a seton.  Ouch.  And, more importantly, yuck.  (The Register via KevinMD)
• NYPD Can't Routinely Tape Protests--A US District Court Judge rules that purely political activity can't be taped.  (Findlaw via NYSBA General Practice Section blog)
• DOJ Sued for Release of Domestic Surveillance Order--The Electronic Frontier Foundation has filed a complaint "seeking the release of a Foreign Intelligence Surveillance Court (FISC)  order that authorized government surveillance of transmissions coming into or going outside of the country where one party was suspected of association with a terrorist organization."  (Jurist)

Civil Rights Round Up

A lot has happened in the civil rights arena over the last few weeks.  Here's a quick round up:

• Freelance videographer jailed in the U.S. loses another bid for release:  He's been in jail since August as a result of his refusal to turn over footage of a G-8 summit protest to a San Francisco federal grand jury investigating the matter.  I tell ya--it just ain't right.
• NYCLU Wins Big Victory In RNC Lawsuit:  A federal judge ruled that the NYCLU may make public documents, deposition testimony and videos obtained during discovery in a lawsuit challenging the NYPD's mass arrests during the Republican National Convention in 2004.  I previously discussed this lawsuit here.  The Court's order can be found here. 
• Bush's domestic surveillance program--gone but not forgotten?:  President Bush announced that he will not reauthorize the domestic eavesdropping program.  As a result, as explained in this Jurist post, the DOJ has asked a federal appeals court to dismiss a lawsuit challenging the surveillance since it is now "moot".  And, shortly thereafter, Attorney General Alberto Gonzales ended a stand off with the Senate Judiciary Committee when he finally agreed to turn over documents detailing the domestic surveillance program.  Have we finally heard the last of it?  Magic 8 balls says: "Not bloody likely."
• Is racial profiling in the name of "terrorism" a thing of the past as well?:  Maybe, but I doubt it.  As explained in this AP article, civil rights advocates have been pressing Congress to introduce a bill banning racial profiling as a result of an incident that resulted in a group of imams being removed from an airplane, as discussed in this prior post.  Will the offense of "flying while Muslim" be erased from the books?  I'm not getting my hopes up.  Are you?

CIA and Pentagon Seek Access to Financial Records

As reported in this New York Times article, in addition to the FBI, the Pentagon and the CIA have been accessing suspected terrorists financial records by issuing thousands of  "non-compulsory"  national security letters to financial institutions:

The F.B.I., the lead agency on domestic counterterrorism and espionage, has issued thousands of national security letters since the attacks of Sept. 11, 2001, provoking criticism and court challenges from civil liberties advocates who see them as unjustified intrusions into Americans’ private lives.

But it was not previously known, even to some senior counter terrorism officials, that the Pentagon and the Central Intelligence Agency have been using their own “non compulsory” versions of the letters. Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters, in part because of concerns about the dangers of expanding their role in domestic spying...

Pentagon officials said they used the letters to follow up on a variety of intelligence tips or leads. While they would not provide details about specific cases, military intelligence officials with knowledge of them said the military had issued the letters to collect financial records regarding a government contractor with unexplained wealth, for example, and a chaplain at Guantánamo Bay erroneously suspected of aiding prisoners at the facility.

Usually, the financial documents collected through the letters do not establish any links to espionage or terrorism and have seldom led to criminal charges, military officials say. Instead, the letters often help eliminate suspects.  (Emphasis added)...

“There’s a strong tradition of not using our military for domestic law enforcement,” said Elizabeth Rindskopf Parker, a former general counsel at both the National Security Agency and the C.I.A. who is the dean at the McGeorge School of Law at the University of the Pacific.

“They’re moving into territory where historically they have not been authorized or presumed to be operating.” Similarly, John Radsan, an assistant general counsel at the C.I.A. from 2002 to 2004 and now a law professor at William Mitchell College of Law in St. Paul, said, “The C.I.A. is not supposed to have any law enforcement powers, or internal security functions, so if they’ve been issuing their own national security letters, they better be able to explain how they don’t cross the line.”

It's good to know that charges usually aren't filed if there are no links to terrorism, isn't it?  Sure it is--as long as you're not one of the unlucky suckers with no connection to terrorism who's facing criminal charges as a result of searches that are quite possibly, oh, I don't know--illegal.  It sure would suck to be that person, wouldn't it?

So, let's recap.  In the fight against terrorism, (and sometimes child pornography), our government is interested in obtaining warrantless access to every citizens':

• financial records (see above)
• internet searches
• internet acitivity
• library records
• mail sent to or received from overseas
• domestic telephone records
• cell phone data in order to pinpoint one's location
• overseas telephone records
• anti-war efforts
• comings and goings
• student loan data

Does anyone else feel any safer as a result of all this fishing into or lives?  I sure don't.

Jury Finds NYC Arrest Policy Violated First Amendment

Earlier this week, a Manhattan jury found that the NYPD's written policy from May 2001 that required that demonstrators be arrested and held overnight rather than issued an appearance ticket violated the First Amendment right to free speech and assembly and the 14th Amendment right to due process.  As reported in this article:

The verdict came after a lawsuit, brought on behalf of some 350 demonstrators, accused the city of starting to lock up all demonstrators it arrested after the 1999 killing of an unarmed African immigrant, Amadou Diallo, who was struck by 19 of 41 bullets fired at him by police officers.

The lockups sometimes occurred despite a city policy that had existed in which people charged with misdemeanors are usually given desk-appearance tickets, telling them when to show up at court for arraignment.

The overnight lockup in Manhattan is notorious for mixing those charged with all sorts of crimes as they await arraignment, making it a particularly unpleasant experience for those unlikely to face any jail time even if they are convicted.

In the past, I've posted about similar lawsuits regarding allegations that the NYPD violated the rights of civil rights protesters during the 2004 GOP convention and animal rights activists during the World Economic Forum.  One lawsuit challenged the NYPD's arrests of "obviously potential rioters'  during who were held by the police for up to 40 hours prior to arraignment which is twice as long as those accused of murder, rape and robbery arrested during the same time frame.

Peaceful political demonstration is one of the very activities intended to be protected by the First Amendment.  In recent years, the government at all levels has repeatedly crossed the constitutional "line in the sand"  by attempting to silence demonstrations in opposition of its policies.  Hopefully, this jury verdict and the other pending lawsuits will discourage the NYPD and other police departments throughout New York from illegally arresting and holding peaceful demonstrators and otherwise interfering with legitimate political protests. 

Civil Rights--and Wrongs

It's been a while since my last civil rights round up and a few things of note have happened.  So, let's get started, shall we?

• Senators Leahy and Specter introduced legislation to restore habeas corpus--" The top Republican on the Senate Judiciary Committee signaled this week that he'll join prominent Democrats in seeking to restore legal rights to hundreds of suspected terrorists confined at Guantanamo Bay, Cuba, and elsewhere. While the measure to restore the right of habeas corpus has almost no chance of passing before Congress adjourns later this week, the message is clear: When Democrats take over in early January, the issue could resurface."  (Hat tip: TalkLeft).
• DOJ asks appeals court to block domestic surveillance lawsuit --Via Jurist:  "The US Department of Justice urged a federal appeals court Monday to dismiss a lawsuit challenging the NSA's domestic surveillance program pursuant to the state secrets privilege. In a brief submitted to the US Court of Appeals for the Sixth Circuit, the administration appealed an August ruling [PDF, JURIST report] from US District Judge Anna Diggs Taylor that the warrantless wiretaps are unconstitutional."  It's deja vu all over again.
• TSA to begin testing backscatter virtual nudity scanner in Phoenix airport by Christmas--"The technology, called backscatter, has been around for several years but has not been widely used in the U.S. as an anti-terrorism tool because of privacy concerns. The Transportation Security Administration said it has found a way to refine the machine's images so that the normally graphic pictures can be blurred in certain areas while still being effective in detecting bombs and other threats."  Talkleft took the words right out of my mouth:  "They want to see through your clothes to get onto an airplane.  What has happened to the 'reasonable expectation of privacy'?"
• FBI taps cell phone mic as eavesdropping tool --The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone's microphone and using it to eavesdrop on nearby conversations...The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan...Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set."  Once again, I'm in full agreement with Talkleft's comparison to the "telescreen" used by Big Brother in Orwell's 1984.  I've argued in the past that this administration's "security measures" are akin to those used by Big Brother.  I'm even more convinced of this after learning of this latest law enforcement tactic. 

The American Way--Intern the Muslims?

Via Discourse.net, I learned that Anti-Muslim sentiment--some (ok, me) might even call it hysteria--has reached new heights, as evidenced by this Reuters article.  The article explains that on the Sunday after Thanksgiving, a Washington radio host pulled an elaborate hoax during a show when he suggested that all Muslims in the U.S. should be identified with a distinctive armband or crescent shaped tattoo.  His proposed plan of action sounded remarkably like the Nazi's treatment of the Jews during WWII, and brought back memories of the Taliban's treatment of the Hindus just prior to the invasion Afghanistan.

Almost immediately, the switchboard was jammed and sadly, many of the callers agreed wholeheartedly with his plan:

The first caller to the station in Washington said that Klein must be "off his rocker." The second congratulated him and added: "Not only do you tattoo them in the middle of their forehead but you ship them out of this country ... they are here to kill us."

Another said that tattoos, armbands and other identifying markers such as crescent marks on driver's licenses, passports and birth certificates did not go far enough. "What good is identifying them?" he asked. "You have to set up encampments like during World War Two with the Japanese and Germans."

That's right, apparently some of my fellow American think it would be a fabulous idea to permanently disfigure Muslims and rip them out of their lives and homes and imprison them in internment camps. 

And, the number of Americans that feel this way is not negligible.  According to the article, the results of a Gallup poll from this summer indicated that 39% of the 1000 Americans polled favored requiring Muslims, even U.S. citizens, to carry identification of their status as Muslims.

What are we becoming?  This administration's policies and unchecked xenophobia have reduced us to a land of people paralyzed by fear, full of hatred and distrust.  Even if there's never another terrorist attack on our soil, simply by virtue of the loss of our liberties and the irrational, xenophobic fear of an entire group of Americans that has been instilled in the hearts of many Americans, the terrorists have already won.   

Civil Rights Round Up

A civil rights roundup is long overdue and a lot has happened over the last few weeks.  So, let's get started:

• Judge strikes down Bush on terror groups:  A District Court Judge in Los Angeles ruled that President Bush's post 9/11 executive order which designated 27 specific groups and individuals as "specially designated global terrorists" was unconstitutional and vague since it gave the president unfettered discretion to label groups without providing them with a way to challenge the designations.   I smell an appeal.
• Supreme Court Refuses to Block Access to NYT Reporters' Phone Records:  As reported here, on Monday the Supreme Court issued an Order in which it refused to grant a temporary stay in a case where federal investigators sought access to the phone records of two New York Times reporters.  First Amendment rights have once again been trumped by the interests of law enforcement.
• Inspector General Will Investigate Domestic Spying Program:  The investigation will focus on how the Justice Department uses information obtained from the wiretaps, but won't address the issue of whether the wiretapping itself is unconstitutional.  Bummer.
• Muslim Imams Booted Off Plane for Praying:  The community is outraged at the treatment of 6 Imams who were removed from a flight due to conducting daily prayers in the gate area and allegedly "making anti-American statements involving the Iraq war, ask(ing) to change seats once inside the cabin...request(ing) an extender to make his seat belt larger even though he did not appear to need it and that in general 'there was some peculiar behavior.'"  So, they prayed, expressed opinions consistent with the majority of Americans about the Iraq war, and requested a larger seatbelt.  Very threatening stuff indeed.  Sounds to me like their "peculiar behavior" was actually flying while Muslim.  We can't have that now, can we?
• Senate Democrats Plan Overhaul of Military Commissions Act In Order to Restore Habeas:  As reported here, the bill, among other things,  "seeks to give habeas corpus protections to military detainees; bar information that was gained through coercion from being used in trials and empower military judges to exclude hearsay evidence they deem to be unreliable."  Sanity, at long last.

Video--UCLA Campus Police Repeatedly Taser Student

This video is unbelievably disturbing and is a prime example of why I am opposed to tasers and believe that they should be outlawed.  Not only are tasers dangerous (see, for example, this article on Wikipedia regarding deaths and injuries caused by tasers), but they are routinely abused by law enforcement.  In my opinion, tasers are used as an easy way out, in lieu of alternative law enforcement techniques that are perceived as inconvenient since they can be more time consuming. 

In the video, UCLA police repeatedly taser an individual who was apparently a student and was asked to leave a computer facility.  From the video, it's difficult to discern exactly what occurred and why he was asked to leave, but what is apparent is that although the individual being tasered was a bit excitable and not exactly cooperative, his behavior certainly did not warrant being tasered once, let alone repeatedly. 

This article described what is alleged to have occurred just before the video began:

The student, who was identified by a UCLA police sergeant as Mostafa Tabatabainejad, had been working at a computer in the back of the lab and had failed to produce a student ID during a random check performed by community service officers, the newspaper reported...Officers were escorting Tabatabainejad out of the computer lab when the trouble started, according to the Daily Bruin. One of the officers placed a hand on one of his arms, which the student objected to. As a second officer approached, he repeatedly yelled "get off of me," the newspaper reported.

It's evident from the video that the students are appalled by the officers actions, initially requesting their badge numbers, and then at the very end they intervene to prevent further tasering.

The individual is apparently being repeatedly tasered due to his refusal to "get up", but as described here on Wikipedia:

According to the many sources, a shock of half a second duration will cause intense pain and muscle contractions startling most people greatly. Two to three seconds will often cause the subject to become dazed and drop to the ground, and over three seconds will usually completely disorient and drop an attacker for at least several minutes and possibly for up to fifteen minutes.

That certainly explains much of his behavior throughout the video.  You can actually hear the duration of the taser shock during the video and in some cases it appears to last at least 2-3 seconds.  This video is tough to stomach, but it needs to be viewed.

In my opinion, the officers' actions were far more extreme than the situation called for and the officers failed to pursue any other alternate methods to get him to comply with their directives.  They could have picked him up and carried him out in lieu of tasering him, or could have used any number of basic takedown techniques to subdue him.  There were three officers and just one non-compliant, outspoken individual and the use of force in this case was excessive and far outweighed the minimal threat that he posed.

WARNING:  The video includes some profanity.