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March 2020
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FBI Says It Will Only Accept Snail Mail FOIA Requests Until Further Notice, Due To Coronavirus Concerns

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With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

A message posted on the FBI's Freedom of Information Act website Tuesday says:"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding."
Left unexplained by the agency is how sending out snail mail -- which could conceivably carry a bit of COVID with it -- is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.This is also against the law, unless the administration decides it's going to suspend FOIA law until the it's declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to "receive requests electronically" either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.Even if lower staffing levels might result in slower responses, the agency's virus response shouldn't be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.But there's more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn't expect responses, either.
Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."
This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI's website doesn't inform requesters that the FBI won't be touching any requests for the rest of the month. The FBI -- through its lawyers -- insists this all very logical because FOIA response personnel can't work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn't helping anyone but an agency that would rather not answer FOIA requests at all.

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posted at: 12:00am on 21-Mar-2020
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First Circuit Appeals Court: 'Community Caretaking' Function Applies To Warrantless Seizures, Not Actually Caring For The Community

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The First Circuit Court of Appeals has confirmed what we've already assumed: the "community caretaking" function law enforcement performs is there to help it dodge the Constitution, not to ensure it actually takes care of the community. Citing Simpsons' episode BABF18*, Judge Selya (trigger warning: overwrought English) says nothing about the community caretaking function prevents officers from harming you. But it does not mean officers ever need to help you.*Judge Selya does not actually cite this, but let's just take a look at what these decisions actually mean:

The Supreme Court has made it clear -- repeatedly -- that officers are under no obligation to "serve and protect," with emphasis on the latter. You're on your own as a citizen when it comes to harm being inflicted on you. Cops are here to file reports and investigate the tragic aftermath of the harm inflicted on you. They are under no obligation to protect you against violence, even if you've repeatedly informed them someone means to do you harm.But cops suddenly become inspired and proactive members of the community when it comes to the community caretaking exception, which allows them to perform searches and seizures without a warrant. In the interest of protecting the community, cops will tow your car and perform a pretextual search. But they'll also go into your house and there's nothing in the Fourth Amendment that can prevent that, apparently.Selya opens the First Circuit's opinion [PDF] by painting a rosy picture of cops as local heroes who would never abuse rights to achieve their own ends.
There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities.
Selya's first egregious abuse of readable English starts on the next sentence, where he asserts without facts in evidence that this Norman Rockwell-esque picture he's painted is based on fact:
Given this reality, it is unsurprising that in Cady v. Dombrowski, 413 U.S. 433 (1973), the Supreme Court determined, in the motor vehicle context, that police officers performing community caretaking functions are entitled to a special measure of constitutional protection. See id. at 446-48 (holding that warrantless search of disabled vehicle's trunk to preserve public safety did not violate Fourth Amendment).
And with that, the court decides the exception that has swallowed the rule for cars is perfectly capable of swallowing homes.
We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes). Based on this holding and on our other conclusions, we affirm the district court's entry of summary judgment for the defendants in this highly charged case.
This case involves a domestic dispute that may or may not have involved a gun and threats. After this dispute had dissipated, the victim called the police the next morning, concerned that her husband might now be suicidal and was in possession of a (possibly unloaded) gun. The spouse made it clear she was worried about the harm he might do to himself and that she was not actually afraid he might come after her. It's unclear what was said about the magazine of ammo, which might not even have been on the suspect, who had left the house with an otherwise unloaded handgun.The cops got ahold of the man, who confirmed his wife's narrative: he had asked his wife to shoot him because he was "sick of the arguments." The cops decided this meant he was a threat to himself and others, and went looking for him.Using this information, the officers decided to start seizing weapons from the home, even though the husband had voluntarily checked into a local hospital.
At some point that morning, someone (the record is unclear as to whether the "someone" was Kim or the plaintiff) informed the officers that there was a second handgun on the premises. After the plaintiff departed by ambulance for the hospital, unaccompanied by any police officer, Sergeant Barth decided to seize these two firearms. A superior officer (Captain Henry) approved that decision by telephone. Accompanied by Kim, one or more of the officers entered the house and garage, seizing the two firearms, magazines for both guns, and ammunition. Kim directed the officers to each of the items seized. The parties dispute both whether Kim indicated that she wanted the guns removed and whether the officers secured her cooperation by telling her that her husband had consented to confiscation of the firearms. There is no dispute, though, that the officers understood that the firearms belonged to the plaintiff and that he objected to their seizure.
After he was cleared by the hospital, the man asked the cops to give him his guns back. They refused, holding onto them for two more months until his lawyer intervened. No criminal investigation was ever initiated. The man sued… and the First Circuit has told him there's nothing he can sue about.Since it's Selya writing the opinion, we're forced to sit through phrases like "asservational array" and "salmagundi of claims" before reaching the conclusion. And the conclusion is this: "We care a lot" as it applies to officers means cops can go into your house and take your guns even if it's an open question as to whether you pose a threat to anyone and have committed no crime they feel is worth investigating.The court even points out this search and seizure was anything but consensual:
It is uncontroverted that the defendant officers understood that the two handguns belonged to the plaintiff and that he objected to any confiscation of them. And in this venue, the defendants press no argument that they secured valid consent from the plaintiff's wife to seize the firearms.
So, here's what we, the people in the First Circuit, end up with:
We conclude that the officers could reasonably have believed, based on the facts known to them at the time, that leaving the guns in the plaintiff's home, accessible to him, posed a serious threat of immediate harm.
And, since no officer accompanied the "suspect" to the hospital for diagnosis/observation (even after officers made it clear they would do it for him if he didn't choose to do it himself), they were perhaps deliberately unaware of the man's current mental state and his threat level.
On this record, an objectively reasonable officer remaining at the residence after the plaintiff's departure could have perceived a real possibility that the plaintiff might refuse an evaluation and shortly return home in the same troubled mental state. Such uncertainty, we think, could have led a reasonable officer to continue to regard the danger of leaving firearms in the plaintiff's home as immediate and, accordingly, to err on the side of caution.
And so this most hallowed place -- the starting point for Fourth Amendment protections -- the home/castle is just another place officers can intrude upon without a warrant if they feel ways about stuff.
We need go no further. Police officers play an important role as community caretakers. As this case illustrates, they sometimes are confronted with peculiar circumstances — circumstances that present them with difficult choices. Here, the actions of the defendant officers, though not letter perfect, did not exceed the proper province of their community caretaking responsibilities. The able district court recognized as much and, for the reasons elucidated above, its judgment is affirmed.
While there were some justifiable concerns about the man, he voluntarily admitted himself to a hospital and the officers had several hours between the initial call and the follow-up (in which the wife expressed concern the man would harm himself rather than her) in which to develop some probable cause for a search and seizure. They proceeded without a warrant and consent, and held onto the man's property for two months without ever bringing criminal charges. The community caretaking exception has made a mockery of the Fourth Amendment -- especially when it comes to vehicles -- but this decision allows the exception to cross the threshold of homes in the circuit, giving officers ample opportunity to perform warrantless fishing expeditions as long as they can claim they were worried about something.

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posted at: 12:00am on 21-Mar-2020
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