Wednesday, June 4, 2014

DOJ/FBI Duty to police Pattern and Practice of Police Misconduct, Title 42, U.S.C., Section 14141

Title 42, U.S.C., Section 14141
Pattern and Practice

Types of misconduct covered include, among other things:
1. Excessive Force 
2. Discriminatory Harassment
3. False Arrest
4. Coercive Sexual Conduct 
5. Unlawful Stops, Searches, or Arrests
This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any governmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

Thursday, May 29, 2014

Wire Tap Law for Recording Police Defeated Again: GERICKE v BEGIN

MAY 23, 2014 United States Court of Appeals For the First Circuit Before Thompson, Selya and Lipez, Circuit Judges.

Carla Gericke, was arrested for wiretapping allegations in 2010 after filming her friend being pulled over and excessive force used by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights. She filed a Civil action for deprivation of rights under 42 U.S. Code § 1983.


CARLA GERICKE, Plaintiff Appellee v GREGORY C BEGIN WEARE POLICE CHIEF:"Accordingly, we hold that the district court properly denied qualified immunity to the officers on Gericke's section 1983 claim that the wiretapping charge constituted retaliatory prosecution in violation of the First Amendment.
Affirmed."

RESOURCES

Elements of a Section 1983 Claim

To prevail in a claim under section 1983, the plaintiff must prove two critical points: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.
A state is not a "person" under section 1983, but a city is a person under the law (Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 [1989]). Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity. Like a state, a territory, such as the territory of Guam, is not considered to be a person for the purposes of section 1983.
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 A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory "right."


For More See Section 1983 at the  



Circumstances in which a claim for damages may lie under 42 U.S.C. § 1983 and the defenses to such a claim.



Wednesday, May 28, 2014

Arbitrary & Ambiguous Audio Recording Case Law Oregon

What is the basis of law and when does the principles of the reasonable man begin to arbitrate justice? It is not in arbitrary interpretations of ambiguous and contradictory statutes.

In common law the jury has the power to decide the law according to the dictates of their conscience.  The right of juries to judge both the law and the facts -- to nullify the law if it chose were a part of British constitutional law since  the days of William Penn.

In Oregon, the Constitution states  "the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." [Art.1, Section 16]

Juries in Oregon have the power to serve, in effect, as the final legislature of the land concerning the law in a particular case. Essentially, the law must conform with the understanding of a reasonable person.

If an electronic device is involved like a telephone, in Oregon, only one person needs to consent. This is why a 911 dispatcher can record the conversation. [City of Lake Oswego v. Mylander, 84 Or App 15, 733 P2d 455 (1987)]

Further, if you can intercept and record a police broadcast which is unscrambled  and the public has free and ready access. This is because the statute does "not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public." [STATE v. BICHSEL B70 854; CA A47766.]


In Oregon Statues, however, like many States, everyone in the conversation  must be informed when their conversation is being recorded. If they are not specifically informed that their conversation is being obtained it is deemed a crime.
[STATE v. KNOBEL86-454-M; CA A43491. 777 P.2d 985 (1989). 97 Or.App. 559. ]


Here is where the arbitrary and ambiguous interpretation of the law begins to unfold. Without their knowledge or consent, you can record, including the police, over the phone or the radio. However, in public, where they have no reasonable expectation of privacy, they cannot be recorded without their knowledge?

To slightly re-frame it, it is okay to record with one person's permission what you might think is private on a phone or radio telecommunications. However, what you consider to be a public conversation with a public official, you must have the knowledge and permission of all involved. While you are being given orders by an officer who may be violating your rights, you are supposed to rouse yourself from the shock of intrusion to tell them "I am recording your conversation with me."

The statute does not prohibit taking or transcribing notes of a conversation, which are rarely accurate and subject to considerable error. However, if you have proof of the truth with a recording, it is .

The Oregon Supreme Court claims this is not over-broad nor unnecessarily over burden the First Amendment in its protection of the press' need to gather news, yet admits the police may be biased in their version of the events. [State v. Knobel, 777 P. 2d 985 - Or: Court of Appeals 1989]

Potentially, you could have a computer on the spot to parse the voice of a speaker without actually recording the voice of anyone involved. Of course, you are depending on the software to correctly interpret what is being said and that is never wholly accurate. So, then, the absurdity of inaccuracy inherent in transcribing is preferred over the best source of testimony - the original voice recording. How is the digital recording of voice materially different than taking down quotes, except for inherently having more accuracy?

At what point do the courts put the burden on public officials for what they say? When does Oregon, in fact, say, any governmental interest in protecting conversational privacy is not implicated when officials are performing duties in public places? When do we acknowledge the chilling effect of criminalizing public recordings unnecessarily restricts First Amendment rights to a free press?

[Am. Civil Liberties Union of IL v. Alvarez]
[Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011]
[733 F. Supp. 465: Connell v. Town of Hudson 1990]
Gazette Publishing Co. v. Cox, Cause No. IP 65-C-528 (S.D.Ind. May 2, 1967).
[Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972)]




Sunday, May 18, 2014

GLIK V CUNNIFFE: Held private citizen has the right to record video/audio of officials in a public place.

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen's First and Fourth Amendment rights.
http://scholar.google.com/scholar_case?case=10945354769903429853&q=Glik+v.+Cunniffe

As he passed the Boston Commonon October 1, 2007, Simon Glik witnessed three police officers arresting an individual.  After hearing one bystander say to the officers, “You are hurting him, stop,” Glik began recording the arrest with his cell phone camera.  

When the officers handcuffed the suspect, one of the officers turned to Glik to say, “I think you have taken enough pictures.”  Glik responded: “I am recording this. I saw you punch him.”  
After Glik said his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts’s wiretap statute.  While detained at the South Boston police station, officers confiscated Glik’s cell phone and a computer flash drive as evidence.
The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner.  The Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner. 
The Boston Municipal Court, in February 2008, granted Glik’s motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute.  The judge found that Glik’s exercise of his First Amendment right to film police did not disturb the peace, noting the officers’ dislike of Glik’s recording did not make this constitutionally protected activity unlawful.  
The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view.
In Glik v. Cunniffe, the First Circuit answered the question of whether police officers could invoke qualified immunity after arresting a citizen for openly recording the officers’ arrest of an individual on Boston Common.

Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees. 

https://www.aclum.org/news_3.27.12




AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS V.ALVEREZ: Public Video/Audio Taping of Police and Other officials

Public Videotaping of Police and Other  Officials: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez
https://www.youtube.com/watch?v=hheZHNDfmPk


http://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html
https://www.youtube.com/watch?v=2DxItZb1RIM




https://www.youtube.com/watch?v=JmxHPJxBYIM

42 U.S. Code § 1983 - Civil action for deprivation of rights

42 U.S. Code § 1983 - Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 http://www.law.cornell.edu/uscode/text/42/1983

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW: Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

Summary:

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
http://www.justice.gov/crt/about/crm/242fin.php