Feb 10 2021

ID demand was unconstitutional, but sheriffs get “qualified immunity”

[Dashcam video of George Wingate being wrongfully arrested by Stafford County, VA Deputy Sheriffs, April 2017]

In its 2004 decision in Hiibel v. Nevada, 2004, the U.S. Supreme Court upheld a demand for a pedestrian to identify himself to police only on the basis that (1) there was already a reasonable articulable basis for suspicion that he had committed some crime before the police demanded that he identify himself, and (2) the state law at issue, as interpreted by the Supreme Court,  required only verbal self-identification (“My name is John Smith”) and not the production of ID credentials or other evidence of his identity.

You might think that a precedent established by the Supreme Court would be “clearly established”. But that would often be wrong, at least in the topsy-turvy world “qualified immunity“.

Some Federal Court of Appeals have held that police who unconstitutionally demand ID can be held liable for violating the civil rights of their victims — as, of course, they should be.

In other cases, however, such as that of Philip Mocek, Courts of Appeal have let ID-demanding police off the hook. The judges theory in these cases has been that, although the police demands for ID were unconstitutional, that illegality wasn’t yet “clearly established. The police might, judges speculated, have had a good-faith, although mistaken, belief that they had a right to demand ID in the particular circumstances at issue.

The latest example of this strained excuse for police impunity comes from the Fourth Circuit Court of Appeals in its recent decision in Wingate v. Fulford.

George Wingate was accosted by Stafford County, VA, Deputy Sheriffs while standing by his car, which he had pulled off the road to try to diagnose the cause of an engine warning light. Nothing about the circumstances gave the sheriffs reason to suspect Mr. Wingate of any crime, the court found. But the sheriffs nonetheless wanted to know who he was.

As captured on this dashcam video, Mr. Wingate knew and properly asserted his rights. The conversation between Mr. Wingate and Deputy Sheriff Scott Fulford went like this:

Fulford: Well, in Stafford County —
Wingate: Have I committed a crime?
Fulford: — it’s required.
Wingate: Have I committed a crime?
Fulford: No. I didn’t say you did.
Wingate: All right then.
Fulford: You’re still required to —
Wingate: Am I free to go?
Fulford: — identify yourself.
Wingate: Am I free to go?
Fulford: Not right now, no.
Wingate: Am I being detained?
Fulford: You’re not detained.
Wingate: Am I free to go?
Fulford: No.
Wingate: Am I being detained? If I’m not being detained, then I’m free to go.
Fulford: You’re not free to go until you identify yourself to me.

All this was, the Court of Appeals found, unconstitutional. And “You’re not being detained, but you’re not free to go” sound a lot more like a pretext for logging the identity and movements of a Black man than good faith. But the Court of Appeals let Fulford and his partner, Deputy Sheriff Dimas Pinzon, off scott-free on the basis of qualified immunity.

Congress needs to end this nonsense by repealing qualified immunity.

Feb 04 2021

“Hypothetical” briefing ordered in TSA lawsuit

The most significant legal challenge since the creation of the Transportation Security Administration to the TSA’s attempt to operate outside the law, and to avoid judicial review of its actions, is coming to a head in the next month in the First Circuit Court of Appeals in Boston. It’s a David v. Goliath legal battle, and the plaintiff wants and needs help.

We’ve talked about Sai’s various challenges to TSA practices before. A little over five years ago, Sai (they go by only one name) filed a pro se challenge to the Constitutionality of 49 USC § 46110, the Federal law which establishes special (and especially limited) procedures and criteria for judicial review of “orders” issued by the TSA.

49 USC § 46110 exempts TSA orders from the usual jurisdiction of Federal District Courts. TSA orders can be reviewed only by the Circuit Courts of Appeal, where there are no trials. Circuit Courts must base their decisions on the “administrative record” as supplied by the  TSA, and must grant the truth of any TSA claims supported by “substantial” evidence, regardless of the existence of any (perhaps more persuasive) evidence to the contrary or impeaching the credibility of the TSA and its claims, and regardless of any evidence that the TSA doesn’t chose to include in its “administrative record”. Needless to say, no objections at all will be in the TSA-created “record” with respect to secretly-issued orders.

In a case of first impression, Sai challenged the Constitutionality of this law both on its face and as applied to them. This is the case that will determine, for all practical purposes, whether the TSA is subject to the rule of law, or can continue to make up and enforce its own secret “rules” as it goes along, changing or disregarding them at whim.

We won’t try to recount the history of the case. Suffice it to say that, although motion practice has been extensive, none of the fundamental issues have yet been addressed. The RECAP docket mirror of the docket doesn’t capture most of the filings in the Court of Appeals. There’s a link to a folder of court filings and other related  documents here on Sai’s website, but they haven’t been able to keep that index up to date.

A few days ago, after months of silence, the 1st Circuit went from “wait” to “hurry up” and  gave Sai just 30 days to brief all their remaining issues and claims, or have them deemed denied. Sai is indigent, proceeding pro se (on their own without a lawyer), and has substantial vision and other physical disabilities that limit the pace of their work.

But that’s not all, and maybe not the worst, of the unfairness in the Court’s latest order.

“Order” isn’t defined in 49 USC § 46110. But in other cases, the TSA has interpreted this definition as broadly as possible, to shield as many of its activities as possible from normal procedures for judicial review. And this is the exclusive procedure for review of such orders.

Sai still doesn’t know what orders the TSA has issued that might apply to them (and that the TSA might try to impose sanctions for unwittingly violating), or what if any basis the TSA claims for these orders. The TSA claims the right to keep all this secret from Sai, while submitting secret lists of secret orders, and secret arguments to justify them, to the Court of Appeals “ex parte and in camera”.

Here’s how the Court of Appeals has now told Sai to respond “hypothetically” to these secret arguments about secret laws:

The matter will proceed to briefing based on the administrative record as just designated. A portion of that administrative record has been accepted for filing ex parte and in camera, and petitioner’s request for clearance to access those materials is denied. Nonetheless, briefing shall proceed. The purpose of a proceeding of this sort is to allow for the challenge of specific agency orders, see 49 U.S.C. § 46110(a), not to facilitate broad discovery of agency policies and practices. With this purpose in mind, the court discerns no reason why petitioner cannot prepare a brief that fully conveys challenges to specific orders despite the unavailability of a portion of the administrative record. Petitioner need only clearly articulate the nature of any orders petitioner reasonably believes may have been disclosed in the sealed portion of the administrative record and then explain why such an order, if it exists, would be amenable to review under § 46110 and why the existence or enforcement of such an order would be illegal or unconstitutional. In other words, to the extent petitioner cannot discern from the publicly filed portion of the administrative record whether a particular order exists, petitioner may present arguments hypothetically assuming the existence of the order and explaining why such an order, if it existed, would be illegal or unconstitutional. Once briefing is complete, the ultimate merits panel will be in a position to review the full administrative record, including the portions of the administrative record filed ex parte and in camera. The ultimate merits panel can assess petitioner’s claims in light of that review.

All this to be completed, on Sai’s part, in the next 30 days.

If you thought arguing hypotheticals was for law school exercises and the bar exam, thnk again. Alice In Wonderland, here we come!

We think that any orders that have been issued in secret, can’t be disclosed to those who are supposed to obey them and against whom they are to be enforced, which are justified (if at all) only by secret arguments and/or secret evidence not subject to independent examination, and that can be challenged only “hypothetically” on the basis of guesses about what the orders are or what secret excuses have been made for them, are unconstitutional on their face, as is this “review” procedure itself.

Sai needs and wants legal help to make this argument to the Court of Appeals. One way or another, this case will set an important precedent. Sai is indigent and significantly disabled, and asked the court to appoint counsel for them. But that’s discretionary in civil cases, and the court declined. If you might be able to provide immediate pro bono legal assistance, please contact Sai ASAP.

 

Feb 01 2021

CDC orders air travelers to unmask for government surveillance

Putting government surveillance and control of travelers ahead of what is supposed to be their mission of protecting of the public against infectious diseases, the U.S Centers for Disease Control and Prevention (CDC) has ordered that, effective today, all air travelers must risk their lives by removing their face masks on demand of Transportation Security Administration (TSA) checkpoint staff or airline ticketing or gate agents.

Until today, as we have noted previously, many state and local health orders issued in response to the COVID-19 pandemic required everyone in public indoor spaces such as airports to wear face masks, without any exception that would have applied at TSA checkpoints. Although we are not aware of any litigation that ensued, air travelers could have asserted their right — and even their  duty — not to remove their face masks, under pain of criminal penalties for violating public health orders.

The CDC order effective today appears to be designed to preempt those state and local health orders, and open the door for the TSA, TSA contractors, and airline staff to endanger the lives of air travelers in the interest of surveillance and control (by the TSA) and “revenue protection” against transfers of nontransferable tickets  (by airlines):

The requirement to wear a mask shall not apply under the following circumstances: … When necessary to temporarily remove the mask to verify one’s identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.

The CDC order aloows — and, in fact, requires — TSA and airline staff and contractors to leave their masks on. Only travelers’ lives are to be endangered.

It remains unclear, of course, whether it is “necessary .. to verify one’s identity” either to the TSA, its contractors, or airline staff, much less whether looking at faces is the way to do so. We think not. But whatever the legality of “ID verification”, the CDC officials responsible for this unmasking order should be ashamed of their betrayal of their medical mission and for promulgating an “insecure flight” requirement.