Articles Posted in Civil Rights/Civil Liberties

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As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.

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We have previously covered on this blog the developing case law interpreting the Massachusetts law governing harassment prevention orders.  To recap, the statute allows an individual suffering from a pattern of “harassment,” meeting certain requirements, to obtain a restraining order against the harasser.  Because “harassment” could be a broad, almost limitless category, the Legislature defined it in the statute to include “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  The Supreme Judicial Court clarified in O’Brien v. Borowski that, not only does a plaintiff need to prove three acts, but where speech or expression is involved, it must be in a category deemed unprotected by the First Amendment, such as “fighting words” or “true threats.”

In the recent case of A.T. v. C.R., a majority of the Appeals Court focused on the unsavory facts of the case before it, and lost sight of the broader principles of the First Amendment.  In A.T., an eleven-year-old boy acted in a boorish and offensive manner towards one of his peers, an eleven-year-old girl.  The incidents at issue were the following:

  1. While video-chatting, the boy commented on the girl’s “jugs of milk” (meaning her breasts).  A friend of his recorded a video of the conversation and sent it to her.
  2. The boy told the girl that, if she showed the video to anyone, he would “make her life a living hell.”
  3. In the school cafeteria, the boy described (or helped a friend describe) his sexual fantasy involving the girl, in which she was a pizza delivery girl.
  4. Some time later, after he had withdrawn from the school, the boy approached the girl and said he wanted to “punch [her] in the titties.”

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Last month, The U.S. Department of Justice announced that it was implementing a new policy to govern the use of cell-site simulator technology, known also as “stingrays,” by federal law enforcement. The policy, available here, is intended to better protect suspects in criminal investigations and bystanders from intrusive, warrantless searches of data collected from their cellular phones.

A stingray is a small device—easily transportable in a car or even on someone’s person—that operates as a portable cell tower. Its signal reaches cell phones and other electronic devices in the area, which in turn transmit information through the stingray instead of through a proper cellular tower. The stingray can obtain information from all devices in the area, even those that are not in use. The problem is that the stingray is not owned or operated by a phone company. It’s owned and operated by the government, and law enforcement will collect and retain location and other identifying information from devices in range of the stingray. A police car that contains a stingray can drive down a road, or stop at a busy intersection, and collect data from electronic devices, without the owners of those devices having any idea that it is happening. The stingray works through walls, which means it can collect data from inside businesses and homes, and can accurately and precisely determine someone’s location. Even when the aim is to collect data from a specific person’s phone, it will also pick up data from bystanders who happen to be in the wrong place at the wrong time: that is, being in the vicinity of a law enforcement officer with a stingray. A stingray has other nasty side effects, too, including by draining device batteries by forcing them to transmit data even when they are not in use, and by disrupting cellular service to the area.

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On August 6, the Supreme Judicial Court, in Commonwealth v. Lucas, No. SJC-11380, held unconstitutional a Massachusetts statute criminalizing the publication of false statements about political candidates and political ballot initiatives “which [are] designed or tend[] to aid or injure or defeat such candidate . . . . [or] which [are] designed to affect the vote on such question.”  G.L. c. 56, § 42.  This firm signed an amicus brief submitted by the Cato Institute, urging the SJC to do so.  The Court declined several opportunities to avoid deciding the constitutional issue and emphatically declared that exposing political litigants to criminal prosecution was too dangerous to a free and open political process to allow the statute any continuing validity.

Melissa Lucas was the President of a Political Action Committee (PAC) that distributed a brochure to voters in a legislative race, urging voters to vote against Brian Mannal, the incumbent.  Among other statements, the PAC asserted that Mannal “chose convicted felons over the safety of our families,” “earned nearly $140,000 of our tax dollars to represent criminals,” and “is putting criminals and his own interest above our families.”  Mannal applied for a criminal complaint two weeks before the election, and held a press conference announcing it.  Lucas filed a motion to dismiss, challenging the constitutionality of the statute.  The election was held before any hearings in the matter took place.

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Over the last few weeks, in the midst of our ongoing national discussion about law enforcement use of force, both the Supreme Court and the Massachusetts Supreme Judicial Court (“SJC”), in Kingsley v. Hendrickson and Commonwealth v. Asher, have joined the conversation with decisions reviewing use of force incidents.  While these two recent cases are very different in that they address distinct areas of the law and distinct factual contexts for the use of force, they share at least one striking similarity: in both Kingsley and Asher, the high courts give no deference to claims by law enforcement officers that their use of force was reasonable.  Instead –and in contrast to the many other decisions where courts have shown a troubling willingness to rationalize even the use of deadly force by law enforcement – these recent decisions suggest that in certain cases courts may now be willing to engage in a more careful review of law enforcement action.

In Kingsley v. Hendrickson, a decision issued Monday, June 22, 2015, the Supreme Court assessed what a pretrial detainee alleging that jail officers used excessive force against him would need to show to prove that the force used was unreasonable.  Michael Kingsley was arrested in Wisconsin on a drug charge and detained in a county jail pre-trial.  During his detention Kingsley refused multiple requests by officers to remove a piece of paper covering the light fixture above his bed.  When officers eventually came to his cell to remove the paper, Kingsley refused to comply with their directions.  He was removed from his cell, handcuffed, and placed face down on a bunk with his hands behind his back.  An officer then placed his knee in Kingsley’s back.  According to Kingsley, that officer and another officer slammed Kingsley’s head into the concrete bunk.  (The officers denied this specific allegation.)  All parties agree that Kingsley – who was still handcuffed with his face on a bunk – was then stunned with a taser to the back of the head for approximately 5 seconds.

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A number of recent news stories have demonstrated that around the country, parents and departments of child welfare are in disagreement about what activities are appropriate for children – and the states are taking steps to enforce seemingly draconian yet undefined rules on parents who leave their children unsupervised for any period of time.  Last summer a South Carolina woman was arrested and her child was taken into state custody when she let her nine-year-old play alone in a park while the mother worked her shift at McDonald’s. Recently parents subscribing to a “free range parenting” philosophy were investigated and found responsible for unsubstantiated neglect after letting their ten and six-year-olds walk home from a park together.  A few months later, the children were picked up a second time and a new investigation was opened.

Not surprisingly many states do not actually have laws to guide parents as to what the state considers appropriate versus neglectful parenting.  Those that do have widely varying requirements.  In California, for example, no child under 6 can be left alone unsupervised in a car, but only if the car is on, the keys are in the ignition, or when there are circumstances that present a risk to the child’s health and safety.  In Hawaii no child under the age of 9 can be left unsupervised in a car for five minutes or longer. States also range dramatically in the age they give as law or guidance on when a child can be left home alone: Colorado recommends children not be left alone before they are 12, Kansas thinks they are ready at 6, and Illinois prohibits by law leaving children home alone until age 14.  There don’t appear to be any rules or regulations  about other independent activities children might engage in, although the cases in Maryland and South Carolina indicate that state agencies and courts might apply the laws relating to leaving children alone in homes and cars to letting children do other activities without supervision.

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The Supreme Judicial Court’s October 10, 2014 decision in Glovsky v. Roche Bros. Supermarkets, Inc., is now the high-water mark in Massachusetts for the right to access private property, over the objection of the property owner, in order to fulfill a constitutional right. The decision addresses the right of a candidate for public office to solicit signatures for ballot access outside the entrance to a supermarket, but could have important implications for the exercise of free speech in Massachusetts. It also could have implications for certain criminal defendants; our firm has represented a defendant arrested for trespass when distributing literature or protesting on private property.

When a Roche Bros. employee told Steven Glovsky, a candidate for Governor’s Counsel, that the supermarket’s policy did not allow signature solicitation on its private property, preventing him from seeking signatures to get on the ballot, he proceeded to file suit. The SJC in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983) (Batchelder I) previously upheld a candidate’s right under the Massachusetts Declaration of Rights Article 9 to seek signatures in the common areas of a shopping mall, comparing the mall to traditional public fora like downtown areas. In Glovsky, the SJC went a step further, clarifying that whether or not a location is functionally equivalent to a traditional public forum, signature solicitation must be allowed if the interests of the candidate outweigh the interests of the property owner. The SJC found that Glovsky had a “substantial interest” in soliciting signatures on the sidewalk of the supermarket, which was the only one in town, and that allowing such solicitation would not unduly burden Roche Bros.’ property interests by, for example, disrupting its business. (Glovsky’s suit was still unsuccessful, however, because the SJC found that the supermarket had not violated the Massachusetts Civil Rights Act.)

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