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October 2019
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Portland Police Review Board Says It's OK For Officers To Lie To Get Someone To Stop Filming Them

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The Portland Police Department's Review Board -- a board composed almost completely of police and government officials -- concluded it's OK for a cop to lie about the law to shut down recordings.Police officers seem to struggle the most when it comes to understanding the rights and protections given to citizens. For years, officers have abused any number of inapplicable laws to arrest citizens who recorded them. When laws and policies were changed in response to court decisions, the abuse of laws continued. The only thing that changed were department policies, which some officers just decided to ignore.This hasn't always worked out well for officers, who often end up in court with their immunity stripped. Those that don't progress as far as the federal court system, however, are left in the hands of local complaint review boards. Even when the board is more independent than Portland's, board recommendations for punishment are often ignored in favor of minimal or no discipline.This case, covered by The Oregonian following the release of Police Review Board records, shows an officer knowingly lied about the law and got away with it.

The bureau’s Police Review Board found Sgt. Erin Smith didn’t knowingly violate the police directive on truthfulness.
Not even with the lying?
The sergeant acknowledged he misrepresented the law to get Kerensa to stop videotaping him during a Nov. 30, 2016, demonstration in front of fuel storage facilities in Northwest Portland over the Dakota Access Pipeline.Smith admitted to falsely telling Kerensa that he didn't have the right to film officers and threatened Kerensa that he could be arrested if he didn’t stop.
So, how does an officer lie without violating a policy directive on "truthfulness?" As it turns out, there are a few convenient exceptions to this directive. First, officers are allowed to use deception for "legitimate law enforcement purposes." But telling someone the law forbade them from filming cops isn't a "legitimate law enforcement purpose."That's the conclusion Portland PD Police Chief Danielle Outlaw (yes, that's her real name) reached. But she said this was more an issue of performance than a truthfulness violation because the officer admitted to lying about the law. Half-credit, I guess. The officer's direct supervisor was even more charitable.
Smith’s supervisor, Traffic Capt. Stephanie Lourenco, found Smith’s deception was permitted under an exception in the policy that says deception is permitted when “necessary to protect the physical safety’’ of an officer.
Lourenco did not explain how a passive recording threatened the officer's safety. The generous application of the deception exception encourages officers to invoke it any time they lie to citizens to get them to comply with unlawful orders. Good times. Thank god the PD is engaged in some form of oversight. Otherwise, we might be subjected to even stupider rationalizations...
[Board members] argued that Smith didn’t knowingly violate the directive and that “deception’’ is an acceptable de-escalation tactic.
Even assuming this was the sort of situation that necessitated a de-escalation, how does lying to people result in calmer interactions? Feeding a line of bullshit to a citizen who knows it's bullshit isn't going to nudge anything towards a more peaceful resolution. Making it a practice to lie to citizens just because you know multiple exceptions allow you to doesn't do anything to improve officers' relationships with the people they serve.Fortunately, this exoneration got a second pass from the city's far more independent Citizen Review Committee, which was thoroughly unimpressed with the PRB's logic. Chief Outlaw agreed to take a second look at the case the PRB had refused to act on. But in the end, lying to citizens about their right to record is only worth about one day's pay. Cops willing to spin the Wheel O' Accountability may find it pays off more often than not, especially when the PRB is willing to make almost any excuse for an officer's bad behavior.

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posted at: 12:00am on 17-Oct-2019
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No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

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A few years ago, the Parma (OH) Police Department decided to turn its hypersensitivity into a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD's social media front. It wasn't particularly subtle satire. Most readers would have immediately realized this wasn't the Parma PD's official page -- not when it was announcing the arrival of the PD's mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read "We No Crime."The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to "disrupt" police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak's civil rights lawsuit to proceed.The opinion [PDF] opens with a brief discussion of how parody works -- and how the court treats parody -- which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.
This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that "strongly encouraged minorities to not apply" and promised swift justice would be brought against an "African American woman" for "loitering outside a Subway" while it was being robbed by an "armed white male," who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma's brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for "disrupting" the PD's apparently endless supply of waste-able time.The Appeals Court says there is no doubt Novak's speech was protected, citing none other than The Onion.
[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).
Unfortunately, this doesn't necessarily mean Novak's claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.
Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.[...]Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.
But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against "disrupting" police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn't like this law much.
[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.
The vagueness of the law could help or hurt Novak, depending on the lower court's interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.A few other claims survive as well, including Novak's allegation that the Parma PD's announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it's determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There's no question the search and arrest were retaliatory. The only question remaining is how much Ohio's terrible law will help these cops get away with it.

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posted at: 12:00am on 02-Aug-2019
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Fans, Indie Soccer Clubs Slam Liverpool FC For Trying To Trademark 'Liverpool'

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Covering trademark nonsense, our posts tend to intersect regularly with the world of sports. It's relatively common at this point to witness teams and even entire leagues pulling anti-fan trademark stunts, from athletes trademarking their own nicknames no matter the fallout, to leagues considering messing with the trademark applications of video game companies, up to and including iconic baseball teams managing to trademark the derisive nickname given to them by other teams. It's all very, very stupid.Across the pond, however, teams in the Premier League have somehow managed to get trademarks on their home-city's names. Chelsea FC, for instance, has a trademark for "Chelsea" related specifically to football services and merch. This sort of thing is almost never allowed here in the States, but it's become enough of a thing that Liverpool FC is attempting the same move for "Liverpool" and it's pissing off a whole bunch of people.As was the case with Chelsea FC, Liverpool FC insists its mark will be very narrow.

The Reds stress their application is "only in the context of football products and services", and intended to protect both the club and the supporters "from those benefiting from inauthentic products".
There are a couple of problems with this. For starters, the general public has apparently become educated enough on the practices of trademark abuse to want to push back on the application themselves. Given how ignorant the general public has long been on how broad trademarks can be abused, this is rather encouraging to see.
A petition has been launched on Change.org that, at the time of writing, had already gathered more than 850 signatures in the space of a few hours.It said: "This petition is to keep [the word Liverpool] for all people of Merseyside to use without a solicitor's letter dropping through your door. Do the right thing. Let's stop this."Twitter user Azul wrote: "The club only need see how unpopular this is with its own fans to realise their greed is going too far. Not everyone has the budget for official merchandise, and there’s many making a living from this. Turn it in lads."
Negative feedback from the public goes on from there, including from local ward Councillors. But you have to also wonder just what the granting of such a trademark would do to City of Liverpool FC, an independent club that plays in the Northern Premier League.
City of Liverpool FC, who play in the Northern Premier League, called the move "outrageous" on Twitter. A spokesman for the club told the ECHO : "Our club is one of many that will be affected by this trademark application made by Liverpool FC.  We as an ambitious and independent football club feel that we are entitled to use the name of our city in our name. We understand that LFC may not have intended to threaten the future of our club, but that is an effect of this application, but even just on a moral basis, we don't think any private business should be able to own the word 'Liverpool' - it simply does not belong to them."
Beyond any moral concerns, this is exactly why many trademark systems put such a high bar on attempts to trademark geographic terms. That term is typically more widely used than any kind of creatively inspired name or term, as is the case here. For a given industry, never mind something as popular as football in the UK, there is likely more than one player in a geographic area. Allowing any one of them to gobble up the rights to a geographic term for that entire industry, even an industry as narrow as football, is insane.
Fellow Twitter user John Furlong called for a campaign against the "ridiculous idea", adding: "The name of the city does not belong to any one individual or group."
Not so in the case of Chelsea, as we've said. But that's a problem, not a precedent worth repeating.

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posted at: 12:00am on 27-Jul-2019
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Following Trump Ruling Against Twitter Blockade, AOC Sued For Her Blocks On Twitter

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So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:

I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

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posted at: 12:00am on 12-Jul-2019
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