scottmorgan's blog

Flex Your Rights Hero Savana Redding

Today, the Supreme Court ruled 8-1 in Safford Unified School District #1 et al v. Redding that school officials violated the 4th Amendment when they strip searched a 13-year-old girl. Savana Redding was subjected to a strip search that included looking inside her underwear after the school principal received a tip that she might be in possession of prescription ibuprofen. None was found.

By a strong majority, the Court declared the search unreasonable under the 4th Amendment, finding that a full strip search was unjustified based on the nature of the drugs and in question and the absence of specific evidence that contraband would be found in her underwear.

Unfortunately, despite upholding the 4th Amendment in this case, the Court left the door wide open for future violations of student rights. The justices agreed by a 7-2 vote that the school officials who carried out the illegal search should not be held liable because the case law was unclear at the time. Now that the central legal issues are settled, similar incidents could invoke liability in the future, but the ruling itself will fail to prohibit such searches in many instances.

By placing heavy emphasis on the negligible threat posed by prescription ibuprofen, the Court implies that a different outcome may have been reached depending on the type of contraband in question. It's possible, for example, that the search would have been upheld if it involved marijuana.

Thus, today's ruling fails to fully clarify the legality of drug searches in schools under many circumstances. It also fails to punish those responsible for degrading an innocent young woman based on flimsy and ultimately false evidence. Hopefully, however, it will at least serve as a reminder to educators that schools are not a 4th Amendment-free zone.

Previous Flex Your Rights coverage of the case can be found here and here.

Surveillance cameras are great for catching bad guys red-handed. Unfortunately, far too often, the outrageous crimes caught on camera are committed by police officers:

As is common in excessive force cases, the victim received several criminal charges, all of which will likely be dropped in light of the compelling video evidence. Whether the officer responsible for this savage assault will be disciplined remains to be seen, but this story certainly has "major lawsuit" written all over it.

Meanwhile in Florida, the same exact thing happened. The suspect was charged with felony assault on a police officer, until this video surfaced:


Anyone can plainly see that it was the police who were guilty of assault, not the other way around. And worse yet, the prosecutor who dropped the charges couldn’t even bring himself to admit that the guy was innocent:

"We thought based on the facts and the evidence, including the videotape, that there was no reasonable likelihood of conviction at trial," said Lee Cohen, assistant state attorney in charge of misdemeanor cases.

Of course, it shouldn’t be a question of whether or not you can convict him. The guy didn't do anything wrong. The police broke his nose, lied about it, and dragged him through a terrifying six-month legal battle that could have ruined his life. After all that, the only decent thing to do is admit he's innocent, give him the mother of all apologies, and hope he doesn't sue the department for all it's worth.

As video technology grows cheaper and more ubiquitous, examples of gratuitous police brutality, cover-ups and false arrests are emerging routinely. Simultaneously, the web provides an efficient mechanism for exposing such conduct to the public and drawing much-needed attention to patterns of police abuse and misconduct that would otherwise have been known only to the victims. It should go without saying that police are responsible for protecting public safety – as opposed to beating up innocent people – and it's just shameful that it's even necessary to constantly review the tape to make sure our police officers are telling us the truth.

Alas, the real turning point in the fight against police brutality may come not because police culture takes a meaningful stand against misconduct, but rather because it may soon become nearly impossible for police to horribly abuse their power without getting caught on hidden camera.

He's no longer a threat to the officer

For many years, the Supreme Court has permitted police to search the passenger compartment of a vehicle any time an occupant of the car is arrested. These so-called "searches incident to arrest" were authorized in New York v. Belton (1981) based in large part on concerns about officer safety, namely that the suspect might dive for a weapon hidden in the car. As a result, police have grown accustomed to searching vehicles for "safety reasons" even after the suspect has been taken into custody. This doesn't protect officers, but it certainly encourages police to make more arrests so they can do more searches.

Well, that's finally going to change. The Supreme Court ruled today in Arizona v. Gant that vehicle searches following an arrest are legal only if the suspect has access to the vehicle or if officers reasonably believe the vehicle contains evidence related to that arrest. In other words, police are now required to have an actual reason to justify the vehicle search, instead of being allowed to do it automatically. This decision restores some much needed logic and common sense to the way many warrantless vehicle searches are analyzed under the 4th Amendment.

We've long been concerned about the ability of police to use arrests for minor crimes as a way of overriding a citizen's refusal of consent. Since many states (and Supreme court precedent) allow officers to perform a full arrest for certain traffic offenses, we've often worried that police could sometimes strong-arm their way into a vehicle by arresting the driver for a traffic violation instead of just writing a ticket. Today's ruling in Gant, however, creates an obstacle to these types of "pretext arrests," because traffic violations are observed infractions for which relevant evidence will not be contained in the vehicle. In that sense, the ruling will likely result in some extra protection for citizens who exercise 4th Amendment rights during a traffic stop.

Beyond the basic legal issues at hand, the case has additional symbolic significance because it truly affects every officer on the street. Every cop is trained to search vehicles automatically after making an arrest, and now every officer will have to learn a new, more nuanced, policy on car searches that is designed to protect individual rights. With today's ruling, the Supreme Court sends an important message to law enforcement that the 4th Amendment still means something in America.

This story has been circulating around the web and is generating some media attention as well:



Obviously, this is a deeply troubling example of a worst-case outcome for a citizen who asserted constitutional rights during a police encounter. Given that our mission is to help people understand and assert these rights, we regret that events like this happen as often as they do.

Fortunately, the internet itself has become a useful tool not only for educating the public about their rights, but also for exposing police who violate the constitutional rights of the people they're supposed to protect. Some might say Steven Anderson's experience is an example of how police just do whatever they want. Yet Steven Anderson is exactly the type of brave citizen whose decision to assert his rights could ultimately have a meaningful impact.

It is precisely because too many police officers continue to recklessly disregard the basic rights of innocent people that we must make sure all citizens have the tools to confidently assert their rights if they choose to do so. This incident will likely culminate in a high-profile lawsuit that could change the way similar situations are handled in the future. If it weren't for Anderson's decision to flex his rights, there's no question that the officers he encountered would be out there right now abusing other people, instead of being investigated for civil rights violations.

Protecting Yourself at Police Checkpoints

Inside-the-border checkpoints like the one Anderson encountered are dubious in their legality and rely heavily on coercion. Although you are not technically obligated to answer any questions or agree to a search, officers will generally expect you to comply and will usually become aggressive if you don’t cooperate. If you choose to flex your rights in this situation, do so politely and don't be surprised if the situation escalates.

If officers ask to search your vehicle and you refuse, they can legally conduct a dog-sniff of the outside of your vehicle (provided that a dog is present at the scene). If the dog indicates that there is contraband in your vehicle, that creates probable cause for officers to conduct a search. Unfortunately, officers sometimes falsely claim that the dog has detected contraband so that they can perform a search legally. In this situation, state clearly that you don't agree to the search, but do not resist. You can challenge the search later.

If you feel that your rights were violated, don't say anything to the officers. Write everything down as soon as possible and contact an attorney. Click here for more on responding to police misconduct.

The TSA got more than they bargained for when they detained Steve Bierfeldt, a staffer at Ron Paul's Campaign for Liberty. They wanted to know why he was carrying $4,700 and he wanted to know whether he was legally obligated to tell them. Fortunately, he was able to record the incident on his phone. This FOX News clip has the audio:



All he did was ask what his rights are in this situation and they start cursing and threatening to call in the DEA. It's ridiculous. There are an infinite number of perfectly legitimate reasons why someone might travel with cash (in this case, the money came from selling merchandise at a conference).

Bierfeldt made it perfectly clear that he would answer the question if the law required him to do so. He wanted to know his rights and there's no excuse for public officials refusing to help a citizen understand the law, especially when the individual has been detained for allegedly suspicious activity.

Fortunately, TSA has now acknowledged that their staff handled the situation badly:

The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

This provides yet another example of the potency of recorded evidence towards exposing questionable behavior by public officials. Without the recording, I highly doubt Bierfeldt could have convincingly demonstrated the rudeness to which he was subjected.

Hopefully, TSA will do more than just remind its employees not to curse and insult people. All government officials should be trained to give an honest and helpful response when citizens ask questions about the law.

I wrote recently about the pending Supreme Court case stemming from the strip search of a 13 year-old student. School officials suspected Savana Redding of possessing prescription ibuprofen, so they searched from head to toe, including her underwear. Nothing was found.

Along with highlighting some interesting legal issues, the case reveals a great deal about the general lack of respect for students' rights that is all too common in our schools. This passage in the New York Times caught my attention:

"They didn’t even look at my records," she said. "They didn’t even know I was a good kid."

The school district does not contest that Ms. Redding had no disciplinary record, but says that is irrelevant.

"Her assertion should not be misread to infer that she never broke school rules," the district said of Ms. Redding in a brief, "only that she was never caught."

That is just a disgustingly cynical and unfair attempt to rationalize mistreating an innocent young woman. To insinuate that Redding may have engaged in other conduct violations that went undiscovered is absurd. It's irrelevant, unsubstantiated, and inappropriate.

This is really the perfect window into the mindset of the abusive authoritarian who, when concerned, insists that their victim must have done something to deserve it.

If there's one substance scary and dangerous enough to justify searching a 13-year-old girl's genitals, it would have to be...extra-strength Advil:

She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side," she said. "They made me open my legs and pull out my underwear."

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21. [NYT]

This story made me shudder twice, first when I learned of Savana Redding's degrading treatment, and again when I considered the very real possibility that the current Supreme Court may conclude that such sickening behavior by school officials is permissible under the 4th Amendment.

The U.S. Court of Appeals for the 9th Circuit found that the search violated Redding's right against unreasonable searches, but the outcome could be very different once the Supreme Court weighs in on the matter. As a general rule, it's not a good sign when the Supreme Court decides to review a good 4th Amendment ruling from the 9th Circuit. The Court will have to determine whether the school officials' suspicions were reasonable based on the available information and whether the search was an appropriate response to their concerns.

If they run into any trouble sorting it all out, I recommend looking up "unreasonable" in the dictionary.

Asset forfeiture laws allow police to confiscate property which is believed to have been obtained through criminal activity. The idea is that people who break the law shouldn’t be allowed to profit from their crimes. Unfortunately, asset forfeiture requires minimal evidence, often resulting in people losing property to law-enforcement without even being charged with a crime. Despite reforms at the state and federal level, we continue to hear horror stories about police taking advantage of these policies and confiscating property from innocent people.

As the struggling economy takes its toll on local law-enforcement budgets, police face an increased temptation to abuse their forfeiture powers. Mix in a little racial profiling and the situation quickly escalates into a shocking pattern of gratuitous civil rights abuses:

TENAHA — You can drive into this dusty fleck of a town near the Texas-Louisiana border if you’re African-American, but you might not be able to drive out of it — at least not with your car, your cash, your jewelry or other valuables.

That’s because the police here have allegedly found a way to strip motorists, many of them black, of their property without ever charging them with a crime. Instead, they offer out-of-towners a grim choice: voluntarily sign over your belongings to the town or face felony charges of money laundering or other serious crimes.

More than 140 people reluctantly accepted that deal from June 2006 to June 2008, according to court records. Among them were a black grandmother from Akron, Ohio, who surrendered $4,000 in cash after Tenaha police pulled her over, and an interracial couple from Houston, who gave up more than $6,000 after police threatened to seize their children and put them into foster care, the court documents show. Neither the grandmother nor the couple were charged with or convicted of any crime. [Star-Telegram]

It's a perversion of justice on several levels. First, nearby Shreveport is a popular gambling destination, thus it's common for motorists in the area to travel with larger-than-usual amounts of cash. This is perfectly legal, of course. Given that officers have confiscated property from 147 people who were never charged with a crime, it seems impossible for police to genuinely believe all of them were involved in something illegal.

Worse yet, when civil rights attorneys began investigating the situation, they were able to locate 40 victims of the forfeiture policy and only one was white. Racial profiling appears to dictate which motorists are targeted for asset forfeiture, as has often been the case in other high-profile forfeiture controversies.

How to Protect Yourself:

Unfortunately, if you're caught in an out-of-control situation like this, there's no easy or perfect way to handle it. The first and most important step is to remain calm. Becoming agitated will only escalate the situation, so stay cool even if you're being treated unfairly.

Keep in mind that police will often use threats and intimidation to convince you to waive your rights. In a forfeiture situation, officers will often claim that you'll be charged with money laundering if you don’t sign over the property. Don't buy it. If they had evidence to charge you with a crime, chances are they would already have placed you under arrest. Ask to speak with an attorney and don’t sign anything.

If you're arrested or any property is taken from you, contact a lawyer immediately.

The town of Homer, Louisiana is embroiled in a racially-charged controversy after a white police officer shot and killed an elderly African-American man in front of his family and friends. Witnesses say police planted a gun on the victim after shooting him and federal investigators are now working overtime to sort the whole thing out.

Of course, questionable police shootings and allegations of severe misconduct are tragically common and it will be interesting to see what the investigation uncovers. What really shook me up about the story was a quote from Homer Police Chief Russell Mills, who was asked about his department's treatment of minorities:

"People here are afraid of the police," said Terry Willis, vice president of the Homer branch of the National Assn. for the Advancement of Colored People. "They harass black people, they stop people for no reason and rough them up without charging them with anything."
That is how it should be, responded Homer Police Chief Russell Mills, who noted the high rates of gun and drug arrests in the neighborhood.

"If I see three or four young black men walking down the street, I have to stop them and check their names," said Mills, who is white. "I want them to be afraid every time they see the police that they might get arrested." [Los Angeles Times]

Arrested for what? Being black? A professional police department should not be a source of intimidation for citizens who've done nothing wrong. It's just an appallingly racist and inappropriate remark coming from the chief of police in a town plagued by racial tension. Chief Mills's mentality pretty much tells you everything you need to know about how things got this bad.

Skeptics in the debate over racial profiling will often begin by telling you that police never use racial profiling, then conclude by implying that black people are all criminals who must be stopped and searched at every opportunity. It's an absurd contradiction. As long as I can still find police chiefs publicly boasting of racial bias in the newspaper, I fail to understand how anyone could claim racial profiling isn’t a serious problem.

Former Seattle Police Chief and LEAP member Norm Stamper has a great piece at Huffington Post discussing police brutality. Chief Stamper is a gentleman and an outspoken advocate for criminal justice reform (he's on our Board of Advisors), but there was a time when he was a tough-guy cop who didn't always play by the rules:

So, why did I abuse the very people I'd been hired to serve?

Not to get too psychological, I did it because the power of my position went straight to my head; because other cops I'd come to admire did it; and because I thought I could get away with it. Which I did--until a principled prosecutor slapped me upside the head and demanded to know whether the U.S. Constitution meant anything to me.

It comes down to this: real cops, those with a conscience, those who honor the law, must step up and take control of the cop culture.

It's an important point. Bad examples from other officers, bad incentives from the department and, of course, the constant pressure of the job itself all contribute to police misconduct. There's nothing surprising about any of that. What I have a difficult time understanding is the tendency of police officers who obey the law to look the other way when their colleagues do not.

The answer might not be any more complicated than the fact that police literally depend on one another for survival. Not unlike the criminals they pursue, police adhere to a strict code of silence and those who break the code are left wondering if back-up will arrive the next time they put in a distress call.

Nevertheless, the very notion of police covering for one another's misdeeds shocks the conscience and perverts the role of law-enforcement in a free society. Sure, I get it that police have to watch eachother's backs, but something is seriously wrong in police culture if officers who expose crimes within the department are treated with contempt by their peers. Police misconduct erodes public trust and serves to undermine the public safety function of law-enforcement on every conceivable level. It's deeply appalling that a climate of hostility could exist within law-enforcement towards those who expose misconduct rather than those who engage in it.

As Chief Stamper argues, it is up to police officers who are serious about protecting the public to step forward and confront those whose actions undermine the profession. If you can drag bad guys off the street every single day, there's no reason on earth you can't take down crooked cops who break the law right in front of your face.