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Fifth Circuit Awards Immunity To Cop Who Thought It Would Be A Good Idea To Jump On A Moving Car And Kill The Driver

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OMG FIFTH CIRCUIT. What the actual fuck.The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:

A City of Arlington police officer pulled over O’Shae Terry and his passenger, Terrence Harmon, for driving a large SUV with an expired registration tag. The officer approached the car and asked Terry and Harmon for identification. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it. In the meantime, another police officer, Defendant Bau Tran, arrived on the scene and approached the car from the passenger’s side next to a curb. While the first officer went back to her patrol car to verify Terry’s and Harmon’s information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle’s engine, and Terry at first complied. Dashcam and bodycam videos capture what happened next.After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled “hey, stop.” Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot 5 rounds, striking Terry four times.
"Smelled marijuana" is something officers say when it might be somewhat inconvenient to bring in a trained dog to perform an "alert." It's a vague claim that can't be substantiated in court. Neither can it be challenged, because by the time court proceedings begin, any claimed odor will obviously have dissipated. And it obviously can't be captured by any recording device, whether operated by cops or the people they're interacting with.Even if we choose to believe the officer smelled what he smelled, the ensuing chain of events makes no sense. You really have to question an officer's instincts if a stop for an expired tag and a follow-up "smell of marijuana" encourages him to attempt to take control of the car by any means necessary. Firing a gun through an open window at the driver wasn't going to put Officer Tran in any less danger. Shooting the driver of a moving vehicle while the officer is STILL ON THE MOVING VEHICLE makes absolutely zero sense.More violence ensued.
Terry lost control, careened across the opposite lane, and jumped the curb. The force of the SUV hitting the curb knocked Tran off and onto the street. As Tran rolled over the asphalt, the car’s rear tires just about hit Tran’s flailing limbs. Harmon then gained control of the SUV, got it back onto the street, and stopped it. An ambulance took Terry to the hospital, but he did not survive.
Police officers are not supposed to create exigent circumstances to justify constitutional violations. (they do tho) A cop can't start a house on fire as an excuse to wander inside to see what's in plain sight. Officers generally aren't supposed to stand in front of moving vehicles just so they have a reason to shoot at people. And this officer's decision to jump on the running board of a car and shoot at the driver while he was still hanging onto the window of the moving vehicle should not be greeted with tacit judicial approval of these tactics. But that's what the Fifth Circuit has handed down here: an invitation for officers to create "dangerous" situations in order to bypass constitutional protections.All that matters to this court is a literal second of time -- not the stop itself, or the end result of the failed stop, but one single second in this horrific chain of events.
Before Terry accelerated, Tran kept his pistol holstered. But about a second after the car lurched forward, Tran drew his pistol and shot Terry four times. That brief interval—when Tran is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether Tran reasonably believed he was at risk of serious physical harm.
Having considered far less time than it has taken to read to this point, the court says the cop was right to do what he did.
That belief was reasonable.
To back up this single second of "reasonable" judgment, the court says the outcome of the cop's violent and injudicious actions justify the cop's violent and injudicious actions.
Indeed, what came next illustrates the danger Tran faced. Several seconds after Tran shot Terry, while the SUV was still moving, Tran fell off the running board and into the busy street.
And…
Moreover, as Tran tumbled across the asphalt, the car’s rear tires nearly overran his limbs.
Well, duh. Maybe don't jump on moving cars and shoot people. Real life ain't T.J. Hooker.The court says it is not here to judge as it lays down its judgment:
The plaintiffs also contend that Tran could have simply stepped off the running board and let Terry drive away, the availability of that alternative, they argue, makes Tran’s use of deadly force unreasonable. But qualified immunity precedent forbids that sort of Monday morning quarterbacking; the threat of harm must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
It all adds up to a "reasonable" cop having a very unreasonable reaction to a developing situation. Rather than encourage cops to act with caution, the court says cops should be free to act like the protagonists of "Bad Boys" and place themselves in incredible amounts of danger. If anyone else gets killed as a result of this "reasonable" carelessness, well… that's on them, I guess.It didn't need to go down this way. But it will happen again. And again. And again. This court says it's reasonable to act unreasonably. Cops can place themselves in harm's way and shoot their way out of it without worrying about being successfully sued for unnecessary killings and injuries.

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posted at: 12:00am on 13-Nov-2021
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Facebook Limits Some Ad Targeting; People Still Won't Be Happy

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I still think that the power of targeted advertising is somewhat overblown (and that neither Google nor Facebook want to admit that). Relatedly, I think that bad targeted advertising creeps people out way too much, and that's a problem. However, given all that, Facebook's newly announced plans to remove certain forms of targeting from its targeted advertising program seems kind of weird.

Starting January 19, 2022 we will remove Detailed Targeting options that relate to topics people may perceive as sensitive, such as options referencing causes, organizations, or public figures that relate to health, race or ethnicity, political affiliation, religion, or sexual orientation. Examples include:
  • Health causes (e.g., Lung cancer awareness, World Diabetes Day, Chemotherapy)
  • Sexual orientation (e.g., same-sex marriage and LGBT culture)
  • Religious practices and groups (e.g., Catholic Church and Jewish holidays)
  • Political beliefs, social issues, causes, organizations, and figures
It is important to note that the interest targeting options we are removing are not based on people's physical characteristics or personal attributes, but instead on things like people's interactions with content on our platform. However, we've heard concerns from experts that targeting options like these could be used in ways that lead to negative experiences for people in underrepresented groups. We routinely review, update and remove targeting options to simplify our ads system, provide more value for advertisers and people, and reduce the potential for abuse.
While I can clearly see ways in which that kind of ad targeting could be abused, it also seems somewhat arbitrary that these limits are now there. And, you can clearly see many reasons why people should be allowed to target advertising on these kinds of topics. For example, advertising religious items to people practicing those religions seems perfectly reasonable.We discussed this a bit before as it relates to a proposed bill to remove Section 230 from targeted advertising on some of these topics: there often are times when it's useful to be able to target to such narrow groups. And yes, even if it can sometimes be abused, is that worth completely tossing out the good created by finding the appropriate audience?And, of course, the simple fact is that no one will ever be happy with Facebook's decisions. As it notes in the announcement itself, advertisers don't like this move, and Facebook critics will claim it doesn't go nearly far enough. This just seems like a semi-arbitrary way of Facebook to dip its toes in the water of saying "we're going to limit this stuff that you insist we only do because of our nefarious intent" and it's not going to stop anyone from insisting Facebook still has nefarious intent.

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posted at: 12:00am on 13-Nov-2021
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