Questions About Your Rights?

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Blaming the Victim

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.
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Asset Forfeiture = Stealing From Innocent People

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.

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If You Don’t Think Police Use Racial Profiling, Read This

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.

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Supreme Court Strikes Another Small Blow Against Exclusionary Rule

Today’s Supreme Court ruling in Herring v. U.S. provides yet another opportunity for us to put a bad ruling in perspective. Like most recent 4th Amendment cases decided by the Court, Herring is an unfortunate finding, but it’s not going to change our advice on handling police encounters.

Bennie Dean Herring was known to local police, who spotted him at the impound lot where he was retrieving an item from his impounded truck. An officer confirmed that Herring had a warrant in a neighboring county and arrested him, in the process discovering methamphetamine and a gun. Moments later, the officer learned that the warrant was erroneous, thus the arrest and subsequent search were invalid.

The Supreme Court found that because officers legitimately believed a warrant existed for Herring’s arrest, their actions were justified and not subject to the exclusionary rule, which prohibits the use of illegally obtained evidence. This is called the “good faith” doctrine, wherein police actions are upheld if officers believed they were acting legally (even if they were not).

The “good faith” doctrine is nothing new, so the Court’s decision isn’t particularly shocking. The Court argues that the exclusionary rule is intended to deter police misconduct and shouldn’t be applied here because the officers didn’t willfully do anything wrong. The dissent argues, and I agree, that the exclusionary rule is a perfectly appropriate means of deterring police agencies from keeping bad records that cause illegal arrests. If there’s no penalty for using bad information, then police have no incentive to keep their books in order. Worse yet, I could envision situations in which police manufacture “good faith” circumstances by preemptively withholding relevant facts from the arresting officers.

The exclusionary rule is vital to the interests of justice and we regret any ruling that reduces the citizen’s protection against illegally obtained evidence. That said, we hope the public will recognize that today’s decision is based on a specific set of circumstances and does not mean that police can now perform illegal arrests at will. The 4th Amendment continues to protect citizens against illegal searches, particularly in common scenarios such as searches that follow a refusal of consent. There’s no question that the Supreme Court is disturbingly reluctant to uphold 4th Amendment rights, but our right against unreasonable searches and seizures is still relevant in the vast majority of common police encounters. Knowing these rights remains your best and only defense when confronted by law enforcement.

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Metro Threatens Flex Your Rights with Legal Action, ACLU Defends

Flex Your Rights’ response to the new random search policy on D.C. public transportation may soon find us in court. The Washington Metro Area Transit Authority (WMATA) has threatened us with legal action due to our use of Metro’s "M" logo on our informational flyer about refusing random searches. Metro alleges that our use of the logo on the widely-distributed flyer constitutes a violation of their registered servicemark and has promised legal action if we do not destroy all remaining flyers and issue an apology by January 5th.

The 5th has now passed, and we have no intention of complying with Metro’s ill-conceived intimidation tactics. We’re well aware that the 1st Amendment protects "fair use" of trademarked material for the purpose of criticism. The ACLU of the National Capital Area has agreed to represent us in the event that Metro files a lawsuit. Our attorney Art Spitzer contacted Metro in a letter today, urging that the legal threats against us be promptly withdrawn to avoid an inevitable loss in court.

As controversy surrounding the random search program continues to escalate, Metro’s frivolous threat is just the latest in a series of bad choices by Metro dating back to the announcement of the program itself. Here’s a quick recap of what’s happened so far:

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Video: Flex Your Rights Protests Random Searches in D.C.

On Wednesday, Flex Your Rights brought together numerous allies, volunteers and friends to protest random searches on public transportation in the Nation’s Capital. The effort was aimed at voicing opposition to the new search policy, while educating the public about the 4th Amendment right to refuse police searches.

The event generated considerable media attention, including the Washington Post, the Washington CityPaper, and local ABC and NBC affiliates:
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The Citizen’s Guide to Refusing DC Metro Searches

In response to the random search program announced yesterday by the Metro Transit Police, we’ve prepared this handy guide to protecting your rights when using public transportation in the Washington, D.C. area. We’ll also be organizing some volunteers to help distribute flyers about the program at various Metro stations. Please contact us if you’re interested in helping out.

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