Ten Seconds Of Doing Nothing Is Reasonably Suspicious, Says The Fifth Circuit Appeals Court
How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.This recent decision, highlighted by defense lawyer/"Constitutional cultist" Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.Here's the setup, as presented by the Fifth Circuit [PDF]:
Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were “seized” when five or six patrol cars parked behind and around Mayo’s Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a “Terry stop.”Some cops were doing some cop stuff in the area. According to the facts on record, the officers were "looking for suspicious behavior," a supposedly "proactive" effort in an allegedly high-crime area that is meant to deter criminal acts by, apparently, rolling up en masse on anyone viewed as suspicious by these Direct Action Response Team (yes, that spells DART) officers.Flowers and Mayo were sitting in the parking lot of a convenience store. The officers were in the area because their supervisor had directed them to patrol near there because of "recent violent crimes and burglaries." This sounds suspiciously like "predictive policing," which sends cops to where crimes have been committed under the assumption that lightning strikes twice/people are less white. The Jackson, Mississippi panopticon works, I guess. But only on the assumption that people living, working, or temporarily idling a vehicle in a high-crime area have fewer rights than those fortunate enough to be elsewhere.So, what were these two "suspects" doing that raised enough suspicion a stop involving five police cars and six officers was warranted? Failing to do anything other than sit in a car for less time than it takes to read the previous two paragraphs:
As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the driver’s seat and one in the passenger’s seat. Officer Stanton observed the vehicle “for approximately 10 to 15 seconds” and noticed the occupants “didn’t appear to be exiting the vehicle, [and] didn’t appear to be patronizing the establishment.” Therefore, he decided to conduct what he characterized as a “field interview.”Apparently, even non-movements can be furtive. The response to this momentarily-observed lack of activity was a literal swarm of police officers.
Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.Behold the majestic absurdity of the following assertion:
Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them.Who amongst us with five or six police cars surrounding our car would feel "free to leave," whether or not that option was communicated to us by one of the six surrounding the car? No one. Not a goddamn person would feel this encounter was still voluntary.At least the Fifth Circuit Appeals Court said it was a seizure under the Fourth Amendment. Pretending it was still consensual was a step too far for even this notoriously law enforcement-friendly circuit. But the very least a court should do when presented with this kind of assertion is to apprise officers that literally no one -- not even the officer making this sworn statement -- actually believes this kind of "interaction" is consensual.The end result was the discovery of some marijuana, a gun, and an outstanding warrant. This led to felony charges. And the Fifth Circuit is fine with this outcome because, hey, don't sit in a car in a high crime area, I guess.
It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowers’s person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.That's the takeaway from this decision. Cops can wander over Constitutional lines as long as a court is willing to grant their "high crime area" assertions credibility. There's no legal definition of "high crime," so it can be whatever cops want it to be. And when they assert this in front of judges prone to grant every benefit of a doubt to fellow government employees, it will work nearly every time.Flow our proxy tears, the court advocating on behalf of the policeman said:
Officers in such areas may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.If the cops can't roll over rights to fight crime, how can they possibly fight crime? That's the question the Fifth Circuit is asking. And it should have an answer that says cops can't disregard rights just because they're patrolling areas where criminal activity is claimed to be "higher" than theoretical areas where it's apparently lower. But instead, the Appeals Court gives us this:
Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.And that is that. The court has basically written a permission slip for stops based on nothing more than a few seconds of observation backed by officers' assertions that criminal activity has occurred nearby at some point in the past. Looking past the legalese, the Appeals Court is telling people their rights mean less if they happen to be in the wrong place at the wrong time, with the "wrong time" being a few seconds of non-movement while observed by officers trained to view literally anything as suspicious.If there's any saving grace to this published decision, it's the dissent, which casts a whole lot of shade on the majority's conclusions while taking a shot at the overreacting cops.
As for the “dawdling” of approximately ten to fifteen seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officer’s reasonable suspicion.That should have been the majority's conclusion. Instead, it chose once again to elevate police officers over the policed, and ensured the poorest of the police can be treated the worst without officers feeling they might be held accountable in a court of law for the rights violations they've committed.
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posted at: 12:00am on 04-Sep-2021
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Mystery Over Fake Section 1201 Takedown Claims Sent By 'Video Industry Association of America' Deepens
It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn't seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they're coming from the US Copyright Office. But that isn't actually clearing much up other than to highlight, again, that the organization doesn't actually exist and is coming from Russia.
A mysterious group called the 'Video Industry Association of America' is trying to wipe the homepages of dozens of reputable sites from Google search. The targets, which stand accused of violating the DMCA's anti-circumvention policy, include Verizon, Pinterest, and Engadget. Google says that it's aware of these fraudulent notices but, thus far, they are not without damage.The ‘American’ organization starts one request off in Russian and finds it hard to construct proper English sentences. In another notice, it complains of sites and apps that circumvent the copyright protection of streaming services, while classifying these as “software cracks.” Things get even more problematic when we look at the URLs that are reported. While these include tools such as DVDFab and YouTube-rippers, which some rightsholders see as problematic, various legitimate sites are targeted as well.So what's going on here? Well, it seems that whoever is behind these DMCA notices is taking shotgun approach to them. Anything that has to do with providing or informing the public on matters of stream-ripping, legit or otherwise, are being targeted. Plenty of other tech news organizations have been targeted as well, such as Engadget and CNET. Most of the takedown requests have gone ignored by Google, but several have not. Many smaller tech sites have been delisted as a result of all this.For at least one of the sites, Google has acknowledged that the delist request was not legit, but also said there is no current appeals process.
Fossbytes reported the issue to Google, which informed the site that there is no official counter-notification process for these anti-circumvention takedowns. As such, the URLs remain deindexed for now.“There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs,” Google replied, requesting a detailed explanation from the site.Meaning the onus is still on the victims of this crap to get themselves re-listed. And, once TorrentFreak got its hands on a copy of the takedown request, it illuminates how blatantly fraudulent all of this is.
This reveals some interesting details that are not available in the Lumen database, including the name, email address, and geolocation of the ‘Video Industry Association of America’ representative.As can be seen above, the sender is actually located in Russia and identifies itself as “Wolf Fang,” which isn’t a typical name, not even in Russia. The email address, which we won’t publish, comes from Gmail and references another animal’s fangs.Again, what's going on here? Is this some coordinated Russian effort to delist a bunch of prominent or otherwise American news sites? Not likely. Instead, this is more likely a form of the kind of fraud-based attack we've seen from overseas sites that abuse the DMCA process in order to take down both its competitors and references to competitors wherever possible.
For now, it remains a mystery who’s behind these notices. It wouldn’t surprise us if the “Video Industry Association of America’ is actually a direct competitor of the stream-ripping and DRM circumvention tools that are reported.This is a strategy we have seen several times in the past. A competitor targets URLs from competing apps and sites, so their own site will end up higher in Google’s search results.In other words, the only real good these bullshit DMCA notices are doing is to further highlight the wide open avenues for fraud and abuse in our current DMCA takedown process.
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posted at: 12:00am on 04-Sep-2021
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