Tag: posts

3/26/2012: NFIB v. Sebelius is argued.

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Predictive policing—a concept seemingly pulled straight from the 2002 popcorn flick Minority Report—has become increasingly hot with law enforcement agencies over the past decade. The field tempts budget-minded officeholders and cops alike with its science-y promise to forecast where crimes will occur in the future and who will commit them, targeting risk while minimizing wasted resources. But it also holds the potential to justify hassling people based on what a computer program and biases entered as data say they might someday do. That’s the basis of a recent lawsuit charging that a Florida sheriff’s department has used predictive policing to harass the innocent.

“Predictive policing is the use of analytical techniques to identify promising targets for police intervention with the goal of preventing crime, solving past crimes, and identifying potential offenders and victims,” according to a 2013 RAND Corporation report. Even in those early days of the field, though, the report acknowledged that “[t]he very act of labeling areas and people as worthy of further law enforcement attention inherently raises concerns about civil liberties and privacy rights.”

In 2012, Reason‘s Ron Bailey observed that the developing field had some promise. But he warned that “[t]he accuracy of predictive policing programs depends on the accuracy of the information they are fed” and that “we should always keep in mind that any new technology that helps the police to better protect citizens can also be used to better oppress them.”

Fast-forward a few years, and we have those concerns fulfilled in spades.

“Pasco County Sheriff Chris Nocco took office in 2011 with a bold plan: to create a cutting-edge intelligence program that could stop crime before it happened,” the Tampa Bay Times reported last September. “What he actually built was a system to continuously monitor and harass Pasco County residents.”

How does the Pasco County program live up to everybody’s worst fears of acting on predictions of what people haven’t done but might do?

“First the Sheriff’s Office generates lists of people it considers likely to break the law, based on arrest histories, unspecified intelligence and arbitrary decisions by police analysts,” the newspaper’s report noted. “Then it sends deputies to find and interrogate anyone whose name appears, often without probable cause, a search warrant or evidence of a specific crime.”

“Make their lives miserable until they move or sue,” is how a former deputy described the department’s tactics to reporters.

Now a group of county residents, represented by the Institute for Justice, is suing the county over the department’s conduct. They describe years of harassing visits by cops who dropped by because the system identified them as potential offenders. When the residents lost patience with the continued police presence in their lives, officers deployed the red tape of the endless regulatory state against them to encourage compliance or to simply cause pain.

“Code enforcement is a common tactic to compel cooperation,” reports the Institute for Justice. “One deputy said they would ‘literally go out there and take a tape measure and measure the grass if somebody didn’t want to cooperate with us.’ In Robert’s case, deputies cited him for tall grass, but failed to notify him of the citation. Then, when he failed to appear for a hearing that he was never told was happening, they arrested him for failure to appear.”

The citations didn’t have to stick to work as intended. The slow torture of tickets, arrests, and disrupted lives drove some to pick up and move out of Pasco County to avoid harassment—by that particular department, at least.

The Pasco County lawsuit isn’t the first filed over predictive policing, though it appears to be the only one to-date that addresses how the approach is used in practice. Given the field’s relative youth, other lawsuits have sought transparency on just what sort of information and calculations are used to make predictions. Many civil liberties advocates are concerned that shiny tech talk is being used to add a scientific gloss to what police already want to do.

“[W]hile big data companies claim that their technologies can help remove bias from police decision-making, algorithms relying on historical data risk reproducing those very biases,” worries Tim Lau of the Brennan Center for Justice, which sued the New York City Police Department for information about its predictive policing program.

“[I]n numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies,” argues a 2019 NYU Law Review article by researchers with the university’s AI Now Institute. “If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on.”

Those policing systems can affect a lot of lives. Over five years, the Pasco County predictive program targeted almost 1,000 people, according to the Tampa Bay Times. Roughly 10 percent of those targeted were younger than 18, and some had only one or two arrests to bring them to the attention of the authorities. Once on the radar, those in the system receive repeated visits at all hours of the day and are at the receiving end of tickets or handcuffs at the slightest excuse. Given the spider’s web of laws and regulations in which Americans now live, police have no difficulty finding a reason to fine or arrest those who their algorithms say are worthy of special attention.

Has the torment of some county residents at least made others safer? That doesn’t seem to be the case.

“Pasco’s drop in property crimes was similar to the decline in the seven-largest nearby police jurisdictions,” the newspaper’s September report noted. “Over the same time period, violent crime increased only in Pasco.”

Whatever the field’s potential for channeling law enforcement effort to where it’s most needed, and away from places it’s unnecessary, predictive policing has become just another excuse for the authorities to hammer those who rub them the wrong way.

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Ava, the fetching and friendly blue antibody, is the protagonist of Ava Antibody Explains, a timely children’s book written by Andrea Cudd Alemanni and delightfully illustrated by Roman Diaz. Ava is a big player on the body’s immune system team, a force that fights off villains such as the virus Charlie Chickenpox.

Vaccines, the book explains, tell Ava what Charlie looks like so he can’t sneak past her. Because Ashley had her Chickenpox vaccine last year, Charlie couldn’t invade her body: When he tried, Ava and her teammates identified and stopped him before he could make her sick. Ava also explains that “Getting the vaccine helps you keep your friends healthy, too!” Since your antibodies protect you, you won’t accidentally pass bad actors like Charlie on to other kids whose antibodies don’t yet recognize him.

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The Supreme Court has handed down a new Fourth Amendment case, Torres v. Madrid, ruling that “the application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”  I thought it might be useful to get a sense of how far the new case goes, and how Fourth Amendment “seizure” doctrine might now look.

I.  Prior Definitions of Fourth Amendment Seizures

First, some context.  Although the law of Fourth Amendment “searches” gets tons of attention, the law of Fourth Amendment “seizures” has traditionally been passed over because it has been pretty simple to understand.  The basic idea of a Fourth Amendment seizure, I have explained, has been a government taking of control.  This plays out somewhat differently for seizures of property and people because the government takes control of people and property differently.

Here’s the blackletter law as I have understood it before Torres.  Let’s start with property.  The government seizes property when it meaningfully interferes with the possessory interest in that property, a test offered in United States v. Jacobsen, 466 U.S. 109, 113 (1984).  Also, the acquisition of physical control must be intentional under Brower v. City of Inyo, 489 U.S. 593 (1989).

When it comes to a person, the seizure test is phrased differently.  A person is seized when a government agent, “by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.” See Brendlin v. California, 551 U.S. 249, 254 (2007) (cleaned up).  When a person responds to a show of authority, as opposed to physical force, the test is that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 255.

At first blush the property-seizure and person-seizure tests sound different, as one is about interfering with possession and the other is about restraining freedom of movement and what a reasonable person would think.  But I think they’re really the same thing.  The government takes control of property by taking possession of it (as having possession, in the law, is just having knowing control). The government takes control of a person by either restraining them through physical force or by making a show of force sufficient to make a reasonable person think they can’t leave. Either way, it’s all about control.

II.  The Framework After Torres

Torres involves a seizure claim from a woman who was shot by police while driving away from them. She was injured but kept driving, escaping, and therefore she did not come under police control.  She brought a civil action against the officers claiming that she was shot in violation of her Fourth Amendment rights.  But was she “seized”?  The Tenth Circuit said she was not, as she was never brought under police control.

Torres resolves uncertainty from dicta in a prior case, California v. Hodari D., 499 U.S. 621 (1991), about whether there was a different approach for applications of physical force to a person.  In particular, Hodari D. suggested that there was a common law rule that an arrest occurred—constituting a Fourth Amendment seizure—when a person was actually touched in an effort to detain them even if they were not actually detained. That common law rule might be the correct interpretation of the Fourth Amendment.

Torres makes that dicta a holding, concluding that this indeed the common law rule and that is also the Fourth Amendment rule.  The vote was 5-3, with Chief Justice Roberts writing for the majority and Justice Gorsuch dissenting.

There’s lots to say about the Torres case, but here I just want to focus on the post-Torres blackletter law.  As I understand the law now, there are three or four distinct kinds of seizures, depending on how you classify them.  Here I’ll go with four different kinds:

1. A seizure of property, which happens when the government intentionally and meaningfully interferes with a possessory interest in that property (see Jacobsen and Brower).
2. A seizure of a person by a show of authority, which happens when the government makes a show of authority sufficient to make a reasonable person believe he was not free to leave and that leads to voluntary submission to the show of authority(see Brendlin and Hodari D.).
3. A seizure of a person by terminating freedom of movement, which happens when the government actually terminates a person’s freedom of movement such as by locking a person in a room (see Brower and Scott v. Harris).
4. A seizure of a person by physical force, which happens when the government applies physical force to the body of a person with intent to restrain the person, even if the force does not succeed in subduing the person (see Torres).

The first three kinds of seizures are about taking control.  The fourth kind of seizure, a seizure of a person by physical force, is about touching with an intent to take control but does not require taking control.

What does Torres say about the requirement of “physical force”? If I am reading the opinion correctly, “physical force” includes both “laying hands” and “touching [the person] with an object,” covering “methods of apprehension old and new.”  A bullet shot from a gun counts as a touching with an object.  The seizure occurs only for the time of the touching, so in the case of a shooting the seizure will last only the instant the bullet strikes.  But it is still a touching using an object.

What about the “intent to restrain” requirement?  According to Torres, the question is whether the objective facts show a subjective purpose to apprehend the person. That is, what happened needs to establish that the officer was trying to restrain the individual.  (The Court leaves open that some other intents beyond intent to restrain may also satisfy the intent requirement, but it focuses on intent to restrain here.).  If the touching is a light touching, for example, that likely won’t be enough to show actual intent to restrain and the act won’t be a seizure.

III.  Three Hypotheticals

These distinctions make me think of some hypotheticals that test the line among these categories.   There may be answers to these questions, but they struck me as interesting questions on which reasonable people might disagree.  Here are three scenarios:

A) The officer is chasing after a suspect on foot who is carrying a bag in his hand.  The officer reaches out to stop the suspect but can only grab the bag, which easily slips out of the suspect’s fingers.  The officer now has the bag, but the suspect never slows down and is not apprehended. 

The seizure of the bag is clearly a Type 1 seizure—that is, a seizure of property.  But was the suspect himself seized?  It can’t be a Type 2 or Type 3 seizure of the suspect, as he never stopped.  But was this a Type 4 Torres seizure?  The officer had intent to restrain the person, but he only grabbed the bag.  Is grabbing the bag laying hands on the person or touching the person via an object (the bag)?  Does that objectively show intent to restrain, or does grabbing the bag only objectively show intent to seize the bag?

B.  An officer believes that a suspect in a car is armed and dangerous.  He sees the suspect reach into his jacket and pull out something that he thinks is a gun.   Believing that his life is in danger, the officer shoots the suspect in self-defense to prevent himself from being shot.  The suspect is shot and wounded, but he manages to drive away.  It turns out the suspect was not armed, but was just pulling out his cell phone.   

Was the suspect seized?  Clearly this is a Type 4 application of physical force to the body of a person.  But is there “intent to restrain”?  In the hypothetical, the officer was not trying to apprehend the person with the gun. He was not trying to bring the person into custody.  Rather, he was trying to stop the person from shooting him.  Does that count as “intent to restrain”?  Perhaps it does, on the theory that the officer are trained that if they fire their weapon, they should shoot to kill—and that if the person had been killed, the killing would have effectively restrained the person. But perhaps it doesn’t, on the theory that the officer’s goal was stopping the suspect from aiming a gun and shooting him, not stopping his movement.

C.  Officer tries to end a high-speed chase by running the suspect’s car off the road by force.  The officer pushes his car’s bumpers against the suspect’s bumpers, running the car off the road where it crashes into a ditch.  The suspect immediately frees himself from the crashed car and continues to run, escaping on foot from the officer.  

Was there a seizure, of either the driver or the car or both?  I assume it was a Type 1 seizure of the suspect’s car, as the officer interfered with the suspect’s control of it. But was there a seizure of the person?  Type 2 is clearly inapplicable.  But was there a brief Type 3 seizure, on the ground that there was a temporary stop of the car when it crashed?  Was there a Type 4 seizure?  On the Type 4 question, did pushing his bumper into the suspect’s bumper that then led to the crash amount to application of physical force to the person using an object?  Or was was that not an application of physical force to the body, as it was instead an application of physical force to the car?

Interesting case.

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The North Carolina Court of Appeals has ruled that a judge did not exceed his authority when he sentenced a man convicted of contempt of court for recording a court proceeding to write an essay on respect for the court, post it online and delete any negative comments. Judge Christopher Brook dissented from the ruling, saying the judge had a right to prevent court proceedings from being recorded and to find the man guilty of contempt for violating that order. But he said the sentence raised free speech concerns. “The probation condition imposed by the trial court requiring defendant to write and publish an essay about respect for the courtroom on his social media and internet accounts and to delete any negative comments made by third-parties on this essay bears no reasonable relationship to defendant’s rehabilitation or to his crime and raises serious First Amendment concerns,” Brook wrote.

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The New York Times reported last week that Senate Majority Leader Charles Schumer discouraged the Federal Emergency Management Administration from rolling out new policies that would ensure coastal landowners pay risk-related flood insurance premiums. This policy change would have been particularly worthwhile given the threat of climate change and would have helped address concerns that the federal government is subsidizing construction in harm’s way. But apparently it would also have increased insurance rates for a small percentage of affected property owners with outsized political influence, so Senator Schumer swung into action.

From the NYT report:

Senator Schumer objected to the flood-insurance overhaul when it was first announced in 2019, citing its potential to raise costs for people on Long Island. The new system would mean steeper rates for some high-value homes, and the southern shore of Long Island includes the Hamptons, which have some of the most expensive real estate in the country.

Senator Schumer’s office told FEMA that the new rates could have a “severe impact” on some communities in New York, according to a person familiar with the conversation. . . .

As detailed in the NYT story, the policy change would actually save money for some homeowners, but would also have a significant effect on a small percentage of “higher-cost homes” in places like the Hamptons. In other words, Senator Schumer seems to oppose those climate policies that might impose greater costs on the rich.

Under the new approach, 23 percent of households with flood insurance would see their rates fall right away, by an average of $86 a month, according to data provided by FEMA, because the updated formula shows they have been overpaying based on their risk. Another 73 percent would see either no change or an increase of no more than $20 a month.

But for some of the remaining households, costs would go up significantly, according to others briefed on the changes.

Congress prevents FEMA from increasing a household’s flood insurance premiums by more than 18 percent a year. Under the new system, some households would face that maximum annual increase for 10 years or more. As a result, their rates could increase at least fivefold over that time.

Those big rate increases would mostly apply to higher-cost homes, which under the current formula tend to underpay for insurance. Many of the people that would see a decrease live in lower-cost homes.

Senatorial hypocrisy on flood insurance and climate change is nothing new. Back in 2014, most members of the Senate Climate Caucus voted to gut changes to the National Flood Insurance Program that would have reduced subsidies for coastal development.

Climate change is a serious problem, but it’s hard to take politicians seriously on the issue when they behave like this.

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