The NYPD sent a warrantless subpoena for a copwatcher's Twitter account

https://hellgatenyc.com/nypd-warrantless-subpoena-copwatcher-social-media

by praisewhitey • 2 years ago

509 296 2 years ago

nfriedly• 2 years ago

The notification included a copy of the subpoena, which warned X not to tell Clancy of its existence. "You are not to disclose or notify any customer or third party of the existence of this subpoena or that records were provided pursuant to this subpoena," the document read.
But X, following its own corporate policy, told Clancy anyway, and suggested he might want to get some legal representation to fight the subpoena, recommending the American Civil Liberties Union.

That's actually the first decent thing I've heard about x since the rename. Good job!

(I assume there won't be any penalties for this action given that it was warrantless in the first place.)

kevingadd• 2 years ago

I can imagine some companies being afraid of pissing off the NYPD. If you have a presence in new york, a police department has lots of tools at their disposal to make your life miserable even if you haven't violated the law

Scoundreller5• 2 years ago

It only works if all of the platforms you use do this.

As my lawyer put it: “Sounds like you could have a first amendment right to quash the subpoena”. Cool, let’s go.
Surprisingly, it worked! I think it cost around $7,000 but the subpoena was quashed
[While] Google was nice enough to let me know there was a subpoena for my account data but guess what? Nobody else even bothered to tell me. And by nobody else I mean: Paypal, eBay, 3 domain registrars, merch makers, VPN providers, and every other online service I had used with that email in the last five years. They had all been subpoenaed and happily handed it over without even letting me know and it works that way even to this day.

https://anons.ca/p/i-used-to-operate-a-dss-hacking-network/

JumpCrisscross35• 2 years ago

It only works if all of the platforms you use do this

Why?

It obviously works better if more people do this. But the single notice is still working to some degree.

caseysoftware• 2 years ago

No, it doesn't take coordinated effort.

If one company stands up and says "no" and then discloses to the subject, it both raises the risk of exposure on other government entities considering the same and increases the likelihood of another company opposing it next time.

Both are wins to build upon.

mc322• 2 years ago

I’m very happy to hear X did the right thing by its users and by the law. One can only hope we have more Orgs like and Qwest (the latter one was taken down but the d gov in retribution).

Congress needs to let the patriot act lapse. We’re not in an emergency anymore, despite the rhetoric -it’s been over 20 years!

Kamq2• 2 years ago

Dude, the patriot act expired back in March of 2020. Trump threatened to veto it and everyone kinda just shrugged and let it expire

https://en.wikipedia.org/wiki/Patriot_Act#Reauthorizations (scroll to the bottom of the section)

autoexec3• 2 years ago

I agree. I assume that twitter doesn't do that for every subpoena they get. For some situations notifying a user that they are under investigation by police would be disastrous. That means they're likely carefully evaluating the legal requests they get instead of leaving the process largely automated or rubber stamping everything that comes though. The willingness to accept possible repercussions by informing users in some cases is really admirable.

pfdietz3• 2 years ago

If he wanted, he could continue to press this in court, even after its was withdrawn. There is precedent in at least some jurisdictions for this: otherwise, bad actors could keep avoiding judicial scrutiny just like the NYPD is doing here.

busterarm10• 2 years ago

Lawyers don't do this though because the best thing to do for their client is get the NYPD to withdraw, not fight a lengthy and expensive legal battle over the NYPD's subpoena power.

The NYPD would legally fight to retain this power to the bitter end.

bena• 2 years ago

Not to mention lawyers have to work with the police fairly regularly. They see fostering an adversarial relationship as bad for them.

So while the police may have broken the law, caused damages, etc, and whatever, other police aren't going to pursue it and neither will most district attorneys.

JumpCrisscross35• 2 years ago

Lawyers don't do this though because the best thing to do for their client is get the NYPD to withdraw

This is where groups like the ACLU come in.

pfdietz3• 2 years ago

This is a judgment call. The courts could respect the idea that this is a sword hanging over the plaintiff, even if this specific case becomes moot. This has happened elsewhere in first amendment cases. In no way is this something that would merit disbarment.

xbar• 2 years ago

I am baffled by the fact that NYPD can avoid the determination of legality by withdrawing subpoenas.

It seems like it would be in X/Meta/Alphabet's interest to get the question in front of a judge in order to require warranted subpoenas.

hex4def6• 2 years ago

If I were to send an illegal demand to someone (like say a threat of blackmail / extortion), can I simply "withdraw" the demand once it reaches court? Absolutely ridiculous.

JumpCrisscross35• 2 years ago

can I simply "withdraw" the demand once it reaches court?

For the per se dispute, absolutely. That's what you went to court to get.

If your demand caused damages, that's a separate controversy that isn't cured by withdrawal.

dylan6043• 2 years ago

Judge: How do you plead?

Defendant: J/K!!!! lulz!!!!!

Judge: case dismissed! <bang>

It probably depends on how wealthy the defendant is (if an individual), or the size of the the org defendant represents. If you're a LEO type of org, then I'm honestly shocked the judge didn't just dismiss with prejudice from the off

john-radio• 2 years ago

It's just like pickpocketing in Skyrim; it's legal if you just withdraw.

deely3• 2 years ago

If I remember correctly you can send illegal DMCA requests as many as you want?

reaperman2• 2 years ago

For patent trolls, the answer is typically yes. Though that’s not “illegal”.

ajross4• 2 years ago

If I were to send an illegal demand to someone (like say a threat of blackmail / extortion),

The distinction is that blackmail and extortion are crimes. It's the act of sending them itself that is the crime, not the demand. If you withdraw it, it doesn't matter, because the crime already happened.

There's no criminal statute here. The NYPD asked for something. Someone challenged it as being "not something the NYPD is allowed to ask for". The NYPD said "never mind, you're right". That's the end of the story. If you want the law granting the NYPD the power to issue subpoenas to be withdrawn or modified, the solution is to elect representatives to do that for you. Courts are just the backstop for this process, and an imperfect one.

Terr_2• 2 years ago

I think this may be confusing "without legal approval" with "prohibited by law". For example, I could type up a letter to my neighbor that he must paint his car blue because that's the law 'round these parts... However that wouldn't necessarily be a crime, it's just be dumb/wrong.

That said, if a law was passed to make "knowingly or recklessly false warrants" a crime, that might be one way to approach the issue.

throwanem2• 2 years ago

Why in their interest?

bediger4000• 2 years ago

To determine once and for all how to act when receiving this kind of subpoena, or to get police departments to stop sending them, whichever is cheapest.

cosmojg2• 2 years ago

Processing warrantless subpoenas costs time and money. Given that we're talking about fairly rational megacorporations, though, it's likely they've already decided that the legal battle would cost more.

lcnPylGDnU4H9OF• 2 years ago

It's possible for a document to be submitted in error, in actual good faith. Not to say it was in this case, nor that we don't need more accountability for abuse, but there could be legitimate reason to skip this judgement if it's withdrawn appropriately. Especially when it's done by an organization without this history of abuse.

avs733• 2 years ago

Because courts use mootness to allow law enforcement to escape criticism all the time.

pfdietz3• 2 years ago

It's not clear that will actually work. Courts are on to the trick of evading judicial review by rendering some issue moot, and there is precedent to work around it. For example, see the "Mootness" discussion in this recent 1st amendment case (Nutt vs. Ritter, 2023):

https://caselaw.findlaw.com/court/us-dis-crt-e-d-nor-car-sou...

throw0101d• 2 years ago

The NYPD actually has 'international offices':

* https://www.nbcnewyork.com/news/local/nypd-stationed-oversea...

* https://archive.is/ZOYiw / https://www.nytimes.com/2018/08/21/nyregion/terrorism-nypd-i...

eli• 2 years ago

NYPD has more resources than most countries' militaries

JumpCrisscross35• 2 years ago

NYPD has more resources than most countries' militaries

It has a more complicated remit than most countries' militaries. (For example, the NYPD functions as the UN's ersatz security force.)

Terr_2• 2 years ago

Assuming that's true for the sake of argument, it shouldn't be that surprising given that NYC is more-populous than the long tail of "most" countries as well. Having 8.5 million people puts it near Austria, Switzerland, Hong Kong [0], or Serbia.

[0] Yeah yeah, "one country two systems", whatever, it's still a relevant comparison.

humansareok1• 2 years ago

NYC has a higher GDP than most countries. So what?

mikrl2• 2 years ago

I’m not sure how I feel about the logistics of this.

On the one hand, municipality to municipality (Antwerp to NYC) makes sense since both will have similar challenges in law enforcement activities.

On the other hand, this seems to be a channel that bypasses the Feds, who are ultimately the ones with the National Security purview, and most/all foreign threats to NYC will pass through the Feds jurisdiction (border control, customs, coast guard etc)

JumpCrisscross35• 2 years ago

most/all foreign threats to NYC will pass through the Feds jurisdiction (border control, customs, coast guard etc)

After 9/11, it seems fair for New York to want to take anti-terrorism into its own hands, even if that duplicates certain federal functions. (I'm not arguing it's effective. Just that it makes sense for the city to not entirely trust the Feds.)

simpletone• 2 years ago

The NYPD actually has 'international offices':

I wonder whether the media is going to write hysterical propaganda pieces about this, like they did with chinese 'international offices'.

With the media, it's always accuse others of what you are doing.

JohnFen• 2 years ago

Not sure what you consider "hysterical propaganda", but this is a thing that has been widely, and critically, covered in the media for decades.

dylan6043• 2 years ago

Isn't a Chinese international office called a consulate? Why would it come across as strange that they would have them?

JumpCrisscross35• 2 years ago

like they did with chinese 'international offices'

The NYPD's international offices do not have policing powers. They can't arrest people. They can't search or seize suspects. They're there with the full knowledge and coöperation of their hosts.

The Chinese police departments were exercising police powers on foreign soil without the host countries' permission. Night and day.

NoMoreNicksLeft• 2 years ago

Of course they do. They're the military for the country of New York City. There's also an intelligence bureau with overseas offices too. They regularly conduct undercover buys at gun shops in foreign nations like Ohio and Virginia. Personally I hope that they'll sign peace treaties with these other places someday. Too much hate in the world.

mistrial9• 2 years ago

They're the military for the country of New York City.

no, there is a lot of law and history to make those laws.. that specifically and in great detail, separate the roles, responsibilities, oversight, legal powers and funding, for obvious reasons.

jonathankoren4• 2 years ago

The NYPD's budget in FY 2024 is 5.3 *BILLION* dollars[0]

This is more than total military expenditure of Romania.[1]

A $115 million of this 5.3 billion was used to settle lawsuits last year.[2]

[0] https://council.nyc.gov/budget/wp-content/uploads/sites/54/2...

[1] https://en.wikipedia.org/wiki/List_of_countries_with_highest...

[2] https://www.nytimes.com/2024/02/29/nyregion/nypd-police-misc...

woodruffw2• 2 years ago

The NYPD's budget is also a significant underestimate, since the NYPD typically blows through hundreds of millions of dollars of additional overtime funding each year[1]. It would be accurate to say that the NYPD's budget is both gigantic and under-accounted.

[1] https://comptroller.nyc.gov/newsroom/nypd-overspending-on-ov...

none_to_remain3• 2 years ago

Why would a subpoena have a warrant?

notaustinpowers2• 2 years ago

It doesn't need a warrant, but a subpoena is just to compel Twitter/X to release the information, while a warrant would legally require Twitter/X to release the information.

The issue is that the subpoena told Twitter/X not to inform the accountholder that their information was going to be given to the NYPD, nor inform the accountholder of the subpoena's existence. While that's enforceable with a warrant, it is not enforceable with a subpoena.

This shows how NYPD is attempting to compel companies to provide them with personal information of users, and keep it secret from the users, all without needing a judge's approval or warrant. That is not the proper channel to do this, and they know they have no legal leg to stand on which is why they aren't going to try to fight it's legitimacy in court.

none_to_remain3• 2 years ago

My understanding as a non-practitioner is that subpoenas are addressed to a person (individual or corporate) compelling them to produce evidence or testimony, while a warrant is addressed to police, giving them the power to effect a specific search, seizure, or arrest.

grey413• 2 years ago

The fourth amendment requires them for search and seizures.

none_to_remain3• 2 years ago

Can you provide any example of a "warranted subpoena"?

JumpCrisscross35• 2 years ago

fourth amendment requires them for search and seizures

The third-party doctrine muddies this under current law.

advisedwang• 2 years ago

The article does a bad job explaining why this subpoena is different from a regular subpoena. The "warrentless subpoena" bit is really misleading.

However it does look like this is different from the normal subpoena process. This doesn't seem to be part of discovery - there is no action. The referenced "Section 14-137 of the New York City Administrative Code" seems to basically grant the NYPD commissioner powers a judge usually has. So there is something to worry about.

qingcharles• 2 years ago

There are two types of subpoenas in use: 1) police-issued ("administrative"); 2) court-issued ("warranted").

Having been the victim of these on many occasions, I can also see the original article seems to have things slightly twisted. The SCA gives the power to any governmental body to subpoena metadata from providers under an administrative subpoena without notice to the user. 18 U.S. Code § 2703(c)(2) I think.

It's the content of records that starts to get into constitutional areas such as 4th Amend. requirements.

bananapub• 2 years ago

it really is funny how much abuse by the government people in the US will tolerate if it's by cops and not the tax office or trying to make the health insurance market slightly less insane.

why is that? is it like australia, where everyone is just deep down a narc?

chasd00• 2 years ago

for most people the day to day interaction with police is positive. For example, i know the names of the police that patrol my neighborhood and we wave/chit chat whenever i'm out walking my dogs and they drive by. The only interaction i have with the tax office is a form I have to fill out and a check I have to write. Further, it seems no matter how much money i hand over the quality of social service remains the same. My local public schools are funded in a large part by my property tax, it has skyrocketed but the schools are the same disaster they've always been.

BobaFloutist• 2 years ago

Lobbying and marketing.

Police make money and provide services for profitable corporations.

Taxes cost profitable corporations money, except when they're really annoying to deal with, in which case they give money to a small group of corporations.

So taxes are designed to be as irritating and painful as possible, and are continually attacked, whereas police are defended.

vkou2• 2 years ago

why is that?

Because the same group of people that hate the tax office and a working healthcare system also have a deep pathological fear of the underclasses rising up. And the only thing that will protect them from this is a gang of uniformed thugs.

That group also holds ~half the political power in the country.

JumpCrisscross35• 2 years ago

a deep pathological fear of the underclasses rising up

At least in New York, support for the police diminishes with income. Manhattan is the anti-police borough. The richest neighbourhoods within it elect the most anti-police politicians (with few exceptions).

sitkack• 2 years ago

Mallory McGee, an attorney with the NYPD Legal Bureau, using another email attached to the drug task force.

This action puts Mallory at risk of getting disbarred. Submitting illegal subpoena's under the color of authority is fraudulent and a disbarrable offense.

Multiple people at the NYPD broke the law and should face criminal action.

93po• 2 years ago

NYPD is famously full of criminals who abuse their position and it seems unlikely to change any time soon

JumpCrisscross35• 2 years ago

NYPD is famously full of criminals

There are ways to hold lawyers accountable that sadly don't exist for cops.

araes• 2 years ago

NYPD? All the way up. Last I heard, Adams appointed an NYPD Chief being investigated by the FBI for $300,000 of unexplained cash in his bank account as the public safety officer. [1]

And there's only been a straw donor scheme with multiple guilty pleas, a fundraiser with $150,000 in unexplained gifts, and illegally accepted donations from Turkish citizens resulting in FBI seizure of electronic devices. [2] This all feels like it's gonna get a Clarence Thomas response.

[1] https://nypost.com/2022/01/07/mayor-eric-adams-hires-ex-nypd...

[2] https://www.politico.com/news/2023/11/13/investigations-eric...

abvdasker• 2 years ago

Anecdotally most vice in New York City is now more or less run through the police or involves some form of NYPD protection racket. Every couple years a large prostitution or drug ring gets broken up and it's always current and former officers running them. Barely makes the headlines. I know people here who have bought drugs from police officers.

renewiltord3• 2 years ago

I'll take the other side of the bet if any will offer. This guy won't be disbarred. Will play on manifold markets or with real money here in SF. Up to maybe $1k. They are not at any risk.

skrebbel• 2 years ago

Cynical nihilism may be a good prediction market bet but it doesn’t make a very interesting HN comment.

hn_throwaway_99• 2 years ago

Mallory McGee is a woman.

wolverine876• 2 years ago

Unaddressed is why nothing is done, by the target of the subpeona, the NYCLU, the court, the city, or someone else, about this practice and about the apparent investigation into critics.

They all seem to treat it as a one-off event, when it doesn't seem to be. I can guess at the difficulties involved, but the question isn't raised and the issues aren't examined.

praisewhitey• 2 years ago

Also unaddressed is what the NYPD intended to do with all that information.

exogeny• 2 years ago

I've lived in NYC for almost 15 years. I've never seen a more corrupt and shiftless organization than the NYPD. It's almost comical. I grew up in a small, Midwestern town and was never anti-cop until moving here, and it got immeasurably and irreparably worse during the George Floyd protests. Every single time anything ever got accelerated or instigated, it was by the police and not by a single protestor. Between the kettling, the instigation, and disrespect it became clear that they're a glorified gang that has operates with almost complete impunity and it shocks me that anyone in the city respects them or considers them a friend to the common good.

The most common run-in I have with them is standing at a crosswalk or sitting in an Uber and watching them put on the sirens and move everyone out of the way just so they don't have to sit in traffic. I'd estimate seeing this happen, oh, I don't know, about a thousand times while simultaneously I have never once seen them pull anyone over for any kind of traffic or moving violation.

whiddershins• 2 years ago

I’ve lived in NYC much longer than that and the NYPD during the past 15 years has, whenever I’ve observed them, which is many times, been very professional.

int_19h2• 2 years ago

During that time period, NYPD tried to involuntarily commit one of their own police officers to a mental institution when he tried to blow the whistle on some of the corruption, with full knowledge of top brass: https://en.wikipedia.org/wiki/Adrian_Schoolcraft

tstrimple• 2 years ago

The LASD literally has multiple gangs internally.

https://en.wikipedia.org/wiki/List_of_LASD_deputy_gangs

WaitWaitWha• 2 years ago

I am pleased how X/Twitter responded to this request.

X/Twitter notified the person, sent a copy of the the subpoena, suggested legal representation, provided recommendations, and defied the NYPD order of silence.

jjjjj555552• 2 years ago

They also could have done the complete opposite. Imagine your life being in the hands of Twitter.

DoesntMatter22• 2 years ago

I mean technically Twitter could have hired a hit man to come after you too. But they didn't. So I don't get the point

gretch• 2 years ago

Your life isn’t in the hands of twitter. It’s in the hands of NYPD, an institution designed to protect the public.

While it’s certainly nice to have, we shouldn’t have an expectation that a private business to defend us from the corruption of the police. Like, that’s a much bigger problem that Twitter does or doesn’t do

sneak• 2 years ago

Walgreens and CVS do the opposite with our medical data. They turn it over to police without even a warrant.

https://arstechnica.com/science/2023/12/cvs-rite-aid-walgree...

There should be consequences when large service providers fail to protect the rights of their customers. Walgreens/CVS are pretty close to a duopoly.

LAC-Tech• 2 years ago

Sounds like twitter acted more ethically than government department. So I guess I choose twitter.

avidiax• 2 years ago

I doubt this is the only request that NYPD sent in this matter. How did the other companies behave?

The NYPD may have pulled this request to avoid scrutiny, but they probably didn't pull all the similar requests that succeeded. The problem is that it's impossible to generate standing in the court if you can't know about their requests.

throwaway20377• 2 years ago

    > The notification included a copy of the subpoena, which warned X not to tell Clancy of its existence. "You are not to disclose or notify any customer or third party of the existence of this subpoena or that records were provided pursuant to this subpoena," the document read.

    > But X, following its own corporate policy, told Clancy anyway, and suggested he might want to get some legal representation to fight the subpoena, recommending the American Civil Liberties Union.

I too was surprised by this!

When the police dept wrote: "You are not to disclose or notify any customer..." is that a legal demand backed by law, or simply a request? I wish I knew more. I suspect it is a request, and that is why Twitter would ignore it. I am sure that Twitter has very conservative internal and external legal counsel to advise on these matters. Plus, there must be many, many of these requests from NYPD.

input_sh• 2 years ago

Last Wednesday, Sachs wrote to the NYPD to challenge the administrative subpoena, which the NYPD had sent on its own authority, without any warrant or judicial approval. If the NYPD did not withdraw the subpoena, Sachs told the NYPD, Clancy would go to court with a motion to quash it.

If it's not backed by a court order, it's a polite request.

But even when it's a court demand, companies have several different counter-measurements. For example, they can tell the court "we can't provide data because we don't have that data" (Signal does this), or "we do have that data, but extracting it is resource-intensive, so the court should pay up" (some of the "Twitter Files" were precisely about this), or straight up ignoring non-American court orders (this is or at least was Reddit's general policy).

woodruffw2• 2 years ago

The NYPD is well known for taking attempts at oversight personally[1][2], overstepping both regulatory and legal limits in the process.

[1] https://nyc.streetsblog.org/2022/08/29/cop-left-creepy-voice...

[2] https://gothamist.com/news/nypd-officer-poses-as-311-operato...

l3mure• 2 years ago

They hate citizens, they hate internal reformers [1]/[2], they hate their own families [3], and it's true of every single police department in the country.

[1] https://en.wikipedia.org/wiki/Adrian_Schoolcraft

[2] https://en.wikipedia.org/wiki/Frank_Serpico

[3] https://www.newyorker.com/magazine/2019/10/07/what-if-your-a...

jeffbee• 2 years ago

"warrantless subpoena" is a nonsense phrase.

ajsnigrutin• 2 years ago

In many countries, if you're eg. an engineer, and you fuck things up, you can become personally responsible for whatever damages happened due to your negligence. The company has its own responsibilities, but you, as an engineer carry some personal responsibility too.

Same for eg. doctors... yes, hospital can get sued, but if you, a doctor, a person, fucked up, you personally can get sued, get into trouble, lose your licence etc.

Same for truck drivers... drive too fast, kill someone, drive drunk, play flappy bird while driving... you personally responsible. Pilots, ship captains too.

etc.

Why the hell are all the public workers exempt from that? Cops, government workers, inspectors, etc.... in the best case possible, taxpayers pay for the damages and that's it. Why?! Someone wanted this subpoeana, his job is to know if s/he can actually request it, s/he signed his/her name on the paper... and then.. nothing?

spencerflem3• 2 years ago

if you're asking earnestly, one of the biggest reasons is that the would-be prosecutor relies on the cooperation of the police department to function. This article covers that and some more:

https://fivethirtyeight.com/features/why-its-still-so-rare-f...

reaperman2• 2 years ago

In some countries it’s possible for civilian lawyers to press criminal charges specifically for situations like this. There’s some gatekeeping by the courts and whatnot to approve the case but it’s pretty reasonable. Also allows victims to “press charges” when the police mysteriously refuse to.

Burden of proof remains the same as for a state-appointed prosecutor. And judges still get similar leeway in sentencing.

Teever• 2 years ago

So why not make a special prosecutor who only deals with police cases?

The solution seems too simple.

That makes me think that the underlying thing causing this issue to plague American society isn't what you suggest.

rileymat2• 2 years ago

Isn’t there something special about the arrangement of doctors not being employed by the hospital that might explain some of the individual suits?

ponector• 2 years ago

For the doctors, it is really hard to loose a license. Even then, a doctor can move to another state and continue to run practice.

alsetmusic2• 2 years ago

Last Week Tonight with John Oliver just covered this topic on Sunday.

Loughla• 2 years ago

I work in the public sector, local government. I'm personally liable for mistakes at my job. I carry insurance for it.

alistairSH3• 2 years ago

“Qualified immunity” is what you’re looking for. The original justification was to protect government officials (primarily law enforcement) from excessive, frivolous lawsuits.

Except the courts have since interpreted QI in such a way that there’s a Catch-22 scenario. Plaintiff needs to establish violation of a clearly established constitutional precedent to have standing, but since QI was only introduced in the 1960s, there’s very little case law proving that precedence.

While I understand the initial thought behind QI, it does seem the bar to holding law enforcement accountable is way too high. Time to adjust the laws (which requires a functional Congress, which we don’t have).

alsetmusic2• 2 years ago

Time to adjust the laws (which requires a functional Congress, which we don’t have).

This is the thing that frustrates me the most about the current state of USA politics. The inability to functionally govern and reach bi-partisan support for a lot of meaningful issues renders us helpless to improve bad systems. Meanwhile, corporations continue to dilute the value of their products and services or jack up the price beyond the rate of inflation and no real regulation seems possible.

kmonsen• 2 years ago

Isn't QI fully something the supreme court made up and unlikely to go away whatever congress does?

btown• 2 years ago

QI is atrocious. See some choice quotes from https://www.politico.com/news/magazine/2023/02/19/qualified-... :

Although a prior court decision had held that it was unconstitutional to release a police dog on a suspect who was lying down, the court in Alexander Baxter’s case granted qualiﬁed immunity to the officers because, it held, the prior decision did not clearly establish the unconstitutionality of the ofﬁcers’ decision to release a police dog on a person who was seated with his hands in the air.
Because no prior court opinion had similar facts, the appeals court judges dismissed Jayzel’s excessive-force claim, even though they believed Aikala’s decision to tase a potential domestic violence victim went “far beyond the pale” and violated the Fourth Amendment.
In Jessop v. City of Fresno, police officers stole $225,000 in cash and rare coins when executing a warrant. Prior cases had held that it was unconstitutional for officers to steal, but those cases were factually distinct — involving the theft of different types of property under different circumstances. According to the appeals court, the officers “ought to have recognized” that it was wrong to steal the coins and cash, but “they did not have clear notice that it violated the Fourth Amendment” because prior court decisions “did not put the constitutional question beyond debate.”

light_hue_13• 2 years ago

The courts have not "interpreted" qualified immunity to mean something. The Supreme Court in 1967 created qualified immunity out of nowhere to defend obviously racist cops in Mississippi. Specifically, they created it to put an end to people using Third Ku Klux Klan Act (Rights Act of 1871) to sue racist cops. This is part of a long history of preventing people from using Reconstruction Era laws to gain any meaningful civil rights.

They did so by saying that 42 U.S.C. § 1983 (which was passed by Grant to fight the KKK) which was meant to allow people to sue for civil rights violations clearly intends to provide an exception for police officers if they acted in good faith (whatever that means; given that good faith here means enforcing a racist law often with extreme violence). But there's absolutely nothing in the actual law, the text passed by Congress or in the intent of Congress, that supports this reading. You can read the Section 1983 yourself:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

A "judicial officer" by the way is a member of the court / judicial branch, not a police officer.

Because there's no law, qualified immunity is a total mess. Different courts and judges apply it very differently. For some it's simply a blanket defense for essentially any acts.

Ironically, Scalia and Thomas have both written dissents on the other side from the liberal judges at times, pointing out that there is literally no basis in law for qualified immunity and the Court should just drop it entirely.

This isn't just a matter of adjusting the law to clarify the interpretation of Section 1983, although that would help. It also requires a long-term realignment of the Supreme Court who shouldn't be able to wholesale write laws this way. That's not me saying this, that's Scalia in Crawford-El v. Britton "[the Supreme Court] find[s] [itself] engaged...in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented—rather than applying the common law embodied in the statute that Congress wrote".

bdjsiqoocwk• 2 years ago

“Qualified immunity” is what you’re looking for. The original justification was to protect government officials (primarily law enforcement) from excessive, frivolous lawsuits.

Everyone else just has to get insurance, why can't they? If you don't have a downside for something you do more of it. There's even a name for this, moral hazard. This isn't a new phenomenon, so why are these people treated as exceptions?

isleyaardvark• 2 years ago

but since QI was only introduced in the 1960s, there’s very little case law proving that precedence.

And worse, any precedent created is interpreted so narrowly as to be ridiculous. If a cop violates your rights on Tuesday, well you are SOL if they do it on Wednesday because there is no precedent for that.

b112• 2 years ago

I know how old common law is, and how far back through time its predecessors go... but 50 years is long enough for loads of case law to appear.

Something else must be a blocker here.

anon373839• 2 years ago

As an historical point, qualified immunity is actually a softening of the harsher and much older doctrine of sovereign immunity (ie, “the king cannot be sued”). Congress relinquished some of the immunity state actors enjoyed, for instances where they violated a person’s constitutional rights. This left open the question of what happens if as-yet unrecognized rights were violated:

The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under § 1983. Until the 1960s, few § 1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to § 1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.”

If qualified immunity applies, money damages aren’t available even if a constitutional violation has occurred. If qualified immunity doesn’t apply, while the government employee or official technically is responsible for money damages, the government entity virtually always pays. So qualified immunity protects states and local governments from having to pay money damages for actions not yet deemed unconstitutional by a court.

Source: https://www.ncsl.org/civil-and-criminal-justice/qualified-im...

gosub1002• 2 years ago

Because in all those professions, there is enough time to follow a process, or (in the case of pilots) their survival is linked to the survival of everyone else.

In a typical police apprehension, there may be a second or less to draw your weapon and fire. Nobody would take the job if they had to be perfect or lose their freedom or life savings.

Speaking of life savings, most of the criminals they apprehend have nothing to lose. So maybe you're on to something. Let's hire police who are currently incarcerated and have no assets, family or wealth to lose. Then they can be subject to the draconian measures of your fantasy and worst case is they got a few months of freedom. Smart guy you are:)

Duwensatzaj• 2 years ago

Then why do cops and government officials get QI in non-emergency situations?

redeeman3• 2 years ago

it is possible to distinquish between situations in a court

godelski• 2 years ago

In many countries

Those countries include the US btw. The rules are basically the same for all of them, that they have to have not just made a mistake, but made an unreasonable mistake. It is often hard to lose a license this way as you need to balance just shit happening, things going wrong when you made the right (or a reasonable) choice vs when you made a gross mistake. And of course, the conditions are based on decisions made a priori, not post hoc. Because post hoc is a dangerous game to play given so much more clarity.

e.g. for Doctors: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/

Of course, this doesn't say anything about cops or the state of affairs here in the US. What surprises me more is that despite what many think, there is quite a lot of distrust for the police.

What someone needs to tell me is how most Americans have "very little" to no confidence in Congress and they keep getting elected. Its pretty universally agreed that no one wants a geriatric in the White House yet here we are. How we distrust all our institutions and yet continue to prop them up.

At this point I'm no longer mad at them. I mad at us. We are being enablers. Even down to local elections I hear so much uproar and low polling rates and yet watch these officials get reelected. I don't think it is foul play because I hear people talk about how they hold their nose while voting. City, county, state, or federal, it is all the same.

Clearly we've made our own bed, but we just don't want to lie in it. If you're going to half ass your job you can't complain about how shitty everything is. Before you go blaming others, take a long look in the mirror. I'm sure __you__ are better than that, just the way __you__ can't be manipulated by propaganda and how __you__ can't be tricked by scams. Clearly, we've been played. Clearly we're still being played. So stop blaming your neighbor or pointing to others until you look in the mirror. We all need to do it if we're going to get our shit together. Because we're all in this together, for better or worse.

But what I fear most is that because we'd rather stroke our egos to claim our own team is best we won't ever realize that it is this action that creates the radicals. It is my fear that we won't solve problems before they are problems. That we believe so much in "don't fix what ain't broke" that we won't ever perform basic maintenance. It is far more expensive to fix what is broken than to fix what isn't. My fear is we won't fix things until the streets run red. And that's my biggest fear, that we, the people, won't realize that the blood isn't just on the hands of the elites, but that it is on ours too. We are happy to play the mafia boss who has fully convinced himself and matter-of-factly asks "do you see blood on my hands?"

[0] https://news.gallup.com/poll/394283/confidence-institutions-...

otherme123• 2 years ago

Not all public workers are exempt. We have public health workers here, and there has been cases of people going to jail for looking at medical records without medical justification. This is a nurse that is going 3 years to jail and a 4,000€ fine for checking the records of her ex: https://theobjective.com/espana/tribunales/2023-07-31/conden...

The immunity doesn't reach all public workers. Only politicians and law enforcers

redeeman3• 2 years ago

Why the hell are all the public workers exempt from that? Cops, government workers, inspectors, etc.... in the best case possible, taxpayers pay for the damages and that's it. Why?! Someone wanted this subpoeana, his job is to know if s/he can actually request it, s/he signed his/her name on the paper... and then.. nothing?

Because the regime wants their agents to blindly obey orders they push down, or foster to happen at lower levels. If this could suddenly come back and cause actual consequences for some of the regime henchmen, it could be that they might consider not obeying.

by definition, the incentives that exists in a state is not to do what is best for the people its supposed to serve. The bigger and wider a state becomes, the more perverse incentives exists, and since a regime can create its own laws and regulations, it will do so to protect itself first and foremost

aftbit• 2 years ago

What's HIDTA? Is that the "high intensity drug trafficking area"? What does that have to do with cop-watching? Maybe they're trying to plant some cocaine on this guy and get him sent away?

Also wtf kind of email is IntelSubpoenas@nynjhidta.org? I guess it probably means "New York New Jersey High Intensity Drug Trafficking Area" but why do they need their own domain? Why not just use an NYPD email?

Weird stuff.

https://lede-admin.hellgatenyc.com/wp-content/uploads/sites/...

AtlasBarfed• 2 years ago

The drug divisions almost all police departments in all major cities are completely riddled with corruption.

They're dealing with the primary monetary fault line of organized crime and gangs.

And drug enforcement is their big cover for almost all abuses.

We need to decriminalize and end the drug war, if only just to stop the Mexican drug gangs.

To take it to a higher geopolitical level... China is likely undergo a demographic collapse soon and possibly one due to totalitarian government paralysis. The geopolitical significance of petroleum is vastly decreasing with EVs American bakken shale oil supply and alternative energy. That means the u.s probably will not be policing the oceans as much to enable free extended trade and logistics lines.

So we will be onshoring manufacturer, and likely a great deal of it in Mexico.

So we're going to need to solve the Mexican drug problem and our drug war in a constructive manner in the next decade

zugi• 2 years ago

Did Michael Gerber, the Deputy Commissioner of Legal Matters, commit the crime of perjury by signing a document asserting he had authority which clearly he did not?

It's also odd that the PDF redacted the name of Michael Gerber, the Deputy Commissioner of Legal Matters, when the NYPD issued a press announcement naming him (https://www.publicnow.com/view/A505A75813F7F2F483905D075F4AD...) and tout him on their public website (https://www.nyc.gov/site/nypd/bureaus/administrative/legal.p...)

It seems that either Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, is clueless about the law, which reflects poorly on his Harvard Law alma matter, or Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, was illegally using threats and coercion and false subpoenas to investigate political opponents and chill free speech.

Either way, this does not reflect well on Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, nor the Harvard Law school from which he allegedly graduated.

vaadu• 2 years ago

The lawyers in the NYPD that signed off on the subpoena should face ethics charges. There seems to be no gray area here on multiple levels. The NYPD knew it wasn't a valid subpoena and they told X not to inform the account holder.

throwaway20377• 2 years ago

I love the closing quote.

    > Clancy, for his part, said that he's undaunted, and that the NYPD has no business rummaging through his social media content and metadata. 

    > "Why would you use a shower curtain and close the bathroom door when you take a shower, if you have nothing to hide?" he asked. "Because it's none of your business, that's why. What the police might want to know and what they have a legal right to know are two different things."

The NYPD sent a warrantless subpoena for a copwatcher's Twitter account

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