Roaches, Mosquitoes, and Birds: The Coming Micro-Drone Revolution

Posted: April 15, 2013 in Uncategorized
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“[Drones are a] game-changing technology, akin to gunpowder, the steam engine, the atomic bomb—opening up possibilities that were fiction a generation earlier but also opening up perils that were unknown a generation ago.”—Peter Singer, senior fellow at the Brookings Institution

America will never be a “no drone zone.”

That must be acknowledged from the outset. There is too much money to be made on drones, for one, and too many special interest groups—from the defense sector to law enforcement to the so-called “research” groups that are in it for purely “academic” reasons—who have a vested interest in ensuring that drones are here to stay.

At one time, there was a small glimmer of hope that these aerial threats to privacy would not come home to roost, but that all ended when Barack Obama took office and made drones the cornerstone of his war efforts. By the time President Obama signed the FAA Reauthorization Act into law in 2012, there was no turning back. The FAA opened the door for drones, once confined to the battlefields over Iraq and Afghanistan, to be used domestically for a wide range of functions, both public and private, governmental and corporate. It is expected that at least 30,000 drones will occupy U.S. airspace by 2020, ushering in a $30 billion per year industry.

Those looking to the skies in search of Predator drones will be in for a surprise, however, because when the drones finally descend en masse on America, they will not be the massive aerial assault vehicles favored by the Obama administration in their overseas war efforts. Rather, the drones coming to a neighborhood near you will be small, some nano in size, capable of flying through city streets and buildings almost undetected, while hovering over cityscapes and public events for long periods of time, providing a means of 24/7 surveillance.

Those looking to the skies in search of Predator drones will be in for a surprise, however, because when the drones finally descend en masse on America, they will not be the massive aerial assault vehicles favored by the Obama administration in their overseas war efforts. Rather, the drones coming to a neighborhood near you will be small, some nano in size, capable of flying through city streets and buildings almost undetected, while hovering over cityscapes and public events for long periods of time, providing a means of 24/7 surveillance.

One type of drone sensor, the Gorgon Stare, can keep track of an area 2.5 miles across from 12 different angles. Another sensor system, ARGUS, can find an object that is only 6 inches long, from 20,000 feet up in the air. A drone equipped with this kind of technology could spy on an entire city at once. For example, police in California are about to begin using Qube drones, which are capable of hovering for 40 minutes at heights of about 400 ft. to conduct surveillance on targets as far as 1 kilometer away. Michael Downing, the LAPD deputy chief for counter-terrorism and special operations, envisions drones being flown over large-scale media events such as the Oscars, using them to surveil political protests, and flying them through buildings to track criminal suspects.

These micro-drones will be the face of surveillance and crowd control in the coming drone age.

Modeled after birds, insects, and other small animals, these small airborne surveillance devices can remain hidden in plain view while navigating spaces off limits to conventional aircraft. Able to take off and land anywhere, able to maneuver through city streets and hallways, and able to stop and turn on a dime, these micro-drones will still pack a lethal punch, equipped with an array of weapons and sensors, including tasers, bean-bag guns, “high-resolution video cameras, infrared sensors, license plate readers, [and] listening devices.”

You can rest assured, given the pace of technology and the fervor of the drone industry (and its investors), that the sky is the limit when it comes to the many uses (and abuses) for drones in America. The following is just a small sampling of what will be descending from the skies in the near future.

Cyborg drones

Cyborg drones. The Defense Advanced Research Projects Agency (DARPA) has begun to develop a Micro-Electro-Mechanical System (MEMS) for the manipulation of insects into “cyborgs.” Through genetic engineering, they are aiming to control the movement of insects and utilize them for surveillance purposes.

Dragonfly drone

Dragonfly drone. First reportedly spotted in 2007 hovering over protesters at an anti-war rally in Washington, DC, it turns out that the government’s dragonfly drones are just the tip of the iceberg when it comes to small aerial surveillance devices designed to mimic nature. Just a year later, the US Air Force “unveiled insect-sized spies ‘as tiny as bumblebees’ that could not be detected and would be able to fly into buildings to ‘photograph, record, and even attack insurgents and terrorists.’”

Hummingbird drone

Hummingbird drone. Shaped like a bird, the “Nano Hummingbird” drone is negligibly larger than an actual hummingbird and fits in the palm of one’s hand. It flits around effortlessly, blending in with its surroundings. DARPA, the advanced research division of the Department of Defense, gets the credit for this biotic wonder.

 Nano Quadrators. Similar to the hummingbird drone, these small, four-propellered nano quadrator drones, developed by researchers at the University of Pennsylvania, operate based upon the flight dynamics of insects, enabling them to operate as a swarm. Using twenty drones, researchers demonstrated how, moving compactly as a unit, the drones were able to navigate obstacles, form complex patterns, and even execute a fluid figure eight arrangement.

Black Hornet Nano drone

Black Hornet Nano drone. Weighing in at roughly half an ounce and four inches long, comparable to a finch, the Black Hornet Nano helicopter drone was designed to capture and relay video and still images to remote users, and can fly even in windy conditions.

DASH Roachbot

DASH Roachbot drone. Developed at UC Berkeley’s PolyPEDAL Lab, DASH, a 10-centimeter long, 16-gram Dynamic Autonomous Sprawled Hexapod strives to mimic a cockroach’s speed and ability to remain covert and a gecko’s speed and agility. Trained to perform “rapid inversion” maneuvers that include dashing up to a ledge and then swinging itself around to end up underneath the ledge and upside-down, DASH is being trained to make rapid transitions between running and climbing.

Samarai drone

Samarai drone. Lockheed Martin’s compact “Samarai” drone, inspired by the design of a maple seed, is capable of high speeds, low battery consumption, vertical movement, and swift ground deployment.

MicroBat dron

MicroBat drone. Additionally, CIT Group, Aerovironment, and UCLA have produced a “MicroBat”  ornithopter; it was designed in part by zoologists who have attempted to make the MicroBat mimic the movement of birds and other flying animals.

Spy-butterfly drone

Spy-butterfly drone. In 2012, Israel unveiled its new insect-inspired drone which they dubbed the “spy-butterfly” because of its two sizable wings. Weighing in at only 20g, this drone was developed for indoor surveillance, including public places such as “train stations and airport terminals—or office buildings.” The size and muted sound of the “virtually noiseless” machines makes them unnoticeable and therefore ideal for intelligence gathering. The spy-butterfly is so realistic that, when tested, “birds and flies tended to fall behind the device arranging into a flock.”

Switchblade drone

Switchblade drone. A more sinister example is the Switchblade, a small military drone intended to act as a kamikaze weapon. Weighing in at a mere six pounds and two feet in length, it flies effortlessly through urban environments before zeroing in on its target, a person, at which point it explodes, unceremoniously killing him or her.

Mosquito dron

Mosquito drone. More lethal than its real-life counterpart, the mosquito drone, while an engineering marvel, is also a privacy advocate’s nightmare with its potential to land on someone and use a needle-like-pincer to extract DNA from its victims or, alternatively, inject drugs or other foreign substances. As software engineer Alan Lovejoy notes:

Such a device could be controlled from a great distance and is equipped with a camera, microphone. It could land on you and then use its needle to take a DNA sample with the pain of a mosquito bite. Or it could inject a micro RFID tracking device under your skin. It could land on you and stay, so that you take it with you into your home. Or it could fly into a building through a window. There are well-funded research projects working on such devices with such capabilities.

Raven drone

Raven drone. Weighing in at 4 pounds, the RQ-11 Raven drone is not as small, nor is it as agile as its smaller counterparts, but with more than 19,000 out there already, it is the most common. Useful for seeing around corners and sending footage back to its handlers, the Raven resembles a rudimentary model airplane and crumbles like Legos upon landing.

With 63 active drone sites across the nation and 56 government agencies presently authorized to use drones, including 22 law enforcement agencies and 24 universities, drones are here to stay. Indeed, the cost of drones—underwritten by a $4 million Homeland Security program which encourages local law enforcement to adopt drone technology as quickly as possible—makes them an easy sell for most police departments. Moreover, while manned airplanes and helicopters can cost $600/hour to operate, a drone can be put in the sky for less than $25/hour. That doesn’t even begin to cover drone use by the private sector, which is already chomping at the bit at the prospect.

No matter what the future holds, however, we must ensure that Americans have a semblance of civil liberties protections against the drones. Given the courts’ leniency towards police, predicating drone use on a warrant requirement would provide little to no protection.  Thus, the only hope rests with Congress and state legislatures that they would adopt legislation specifically prohibiting the federal government from using data recorded via police spy drones in criminal prosecutions, as well as preventing police agencies from utilizing drones outfitted with anti-personnel devices such as tasers and tear gas.

Either way, we’d better get ready.

As Peter W. Singer, author of “Wired for War,” a book about military robotics, warns: “The debate over drones is like debating the merits of computers in 1979: They are here to stay, and the boom has barely begun. We are at the Wright Brothers Flier stage of this. There’s no stopping this technology. Anybody who thinks they can put this genie back in the box—that’s silliness.” — John W. Whitehead

North Carolina School Officials Attempt to Justify Strip-Search of 10-Year-Old Boy for Lost $20 Bill

Posted: April 11, 2013 in Uncategorized
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School officials who stripped a 10-year-old boy down to his underwear in an aggressive strip-search that included rimming the edge of his underwear, allegedly in an attempt to find another student’s missing $20 bill (which was later found on the cafeteria floor), are attempting to justify their actions as being within their legal purview. Yet as The Rutherford Institute points out, in challenging the school’s attempt to have the lawsuit against it dismissed, there is no justification for the school’s decision to so egregiously violate the fifth-grader’s Fourth Amendment rights or for the alleged failure to train school employees in how to appropriately deal with such matters.

Indeed, such outrageous conduct by school officials not only dehumanizes students but it also deprives them of the fundamental right of privacy under our Constitution. These types of searches clearly illustrate the danger inherent in giving school administrators carte blanche authority to violate the civil liberties and privacy rights of students. Do we really want young people to be taught that they have no true rights and that government authorities have total power and can violate their rights as they see fit?

J.C. Cox, victim of an aggressive strip search by school officials

The lawsuit arose over an incident that took place on Friday, June 12, 2012. J.C., a fifth-grader attending Union Elementary School in Clinton, N.C., was in the school cafeteria eating lunch when a female classmate dropped money onto the floor. J.C. went under the table, retrieved the coins and returned them to the girl.

Upon approaching J.C.’s table, Assistant Principal Teresa Holmes was informed that someone had dropped $20 on the floor, that the money was missing, and that J.C. had gone under the table in search of the missing money. Despite J.C.’s insistence that he did not have the money, Holmes ordered him to go to her office and with a school custodian present, interrogated the 10-year-old again.

Again, J.C. denied having the money, going so far as to pull out his pockets to show that he had no money. Insisting that she had no choice but to search J.C. and was within her legal right to do so, the assistant principal then allegedly ordered J.C. to remove his shoes, socks, pants and shirt. With J.C. stripped to his underwear, Holmes ran her finger around the waistband of his undershorts. No money was found. However, while J.C. was being searched, another teacher arrived to report that the $20 had been found on the cafeteria floor.

Coming to the defense of J.C. and his family, The Rutherford Institute filed a civil rights lawsuit against the Sampson County Board of Education and former Union Elementary School Assistant Principal Teresa Holmes in December 2012 in the U.S. District Court for the Eastern District of North Carolina.

In suing the school for violating J.C.’s Fourth Amendment rights, Rutherford Institute attorneys point to a 2009 ruling by the U.S. Supreme Court in Safford Unif. Sch. Dist. # 1 v. Redding which held that school officials do not have the authority to strip search a student absent evidence that the student possesses contraband that poses a danger. Moreover, the lawsuit argues that the search was constitutionally unreasonable because school officials did not have sufficient grounds to believe J.C. was hiding the lost money and because student strip searches of students are allowed only in the interest of school safety. — John W. Whitehead

The Psycho-Therapeutic School System: Pathologizing Childhood

Posted: April 9, 2013 in Uncategorized
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“There’s a tremendous push where if the kid’s behavior is thought to be quote-unquote abnormal — if they’re not sitting quietly at their desk — that’s pathological, instead of just childhood.”—Dr. Jerome Groopman, professor of medicine at Harvard Medical School

According to a recent report by the Centers for Disease Control, a staggering 6.4 million American children between the ages of 4 and 17 have been diagnosed with attention deficit hyperactivity disorder (ADHD), whose key symptoms are inattention, hyperactivity, and impulsivity—characteristics that most would consider typically childish behavior. High school boys, an age group particularly prone to childish antics and drifting attention spans, are particularly prone to being labeled as ADHD, with one out of every five high school boys diagnosed with the disorder.

Presently, we’re at an all-time high of eleven percent of all school-aged children in America who have been classified as mentally ill. Why? Because they “suffer” from several of the following symptoms: they are distracted, fidget, lose things, daydream, talk nonstop, touch everything in sight, have trouble sitting still during dinner, are constantly in motion, are impatient, interrupt conversations, show their emotions without restraint, act without regard for consequences, and have difficulty waiting their turn. 

The list reads like a description of me as a child. In fact, it sounds like just about every child I’ve ever known, none of whom are mentally ill. Unfortunately, society today is far less tolerant of childish behavior—hence, the growing popularity of the ADHD label, which has become the “go-to diagnosis” for children that don’t fit the psycho-therapeutic public school mold of quiet, docile and conformist.

Mind you, there is no clinical test for ADHD. Rather, this so-called mental illness falls into the “I’ll know it if I see it” category, where doctors are left to make highly subjective determinations based on their own observation, as well as interviews and questionnaires with a child’s teachers and parents. Particular emphasis is reportedly given to what school officials have to say about the child’s behavior.

Yet while being branded mentally ill at a young age can lead to all manner of complications later in life, the larger problem is the routine drugging that goes hand in hand with these diagnoses. Of those currently diagnosed with ADHD, a 16 percent increase since 2007, and a 41 percent increase over the past decade, two-thirds are being treated with mind-altering, psychotropic drugs such as Ritalin and Adderall.

Diagnoses of ADHD have been increasing at an alarming rate of 5.5 percent each year. Yet those numbers are bound to skyrocket once the American Psychiatric Association releases its more expansive definition of ADHD. Combined with the public schools’ growing intolerance (aka, zero tolerance) for childish behavior, the psychiatric community’s pathologizing of childhood, and the Obama administration’s new mental health initiative aimed at identifying and treating mental illness in young people, the outlook is decidedly grim for any young person in this country who dares to act like a child.

As part of his administration’s sweeping response to the Newtown school shootings, President Obama is calling on Congress to fund a number of programs aimed at detecting and responding to mental illness among young people. A multipronged effort, Obama’s proposal includes $50 million to train 5,000 mental health professionals to work with young people in communities and schools; $55 million for Project AWARE (Advancing Wellness and Resilience in Education), which would empower school districts, teachers and other adults to detect and respond to mental illness in 750,000 young people; and $25 million for state efforts to identify and treat adolescents and young adults.

One of the key components of Obama’s plan, mental health first-aid training for adults and students, is starting to gain traction across the country. Incredibly, after taking a mere 12-hour course comprised of PowerPoint presentations, videos, discussions, role playing and other interactive activities, for instance, a participant can be certified “to identify, understand and respond to the signs of mental illness, substance use and eating disorders.”

While commendable in its stated goals, there’s a whiff of something not quite right about a program whose supporting data claims that “26.2 percent of people in the U.S. — roughly one in four — have a mental health disorder in any given year.” This is especially so at a time when government agencies seem to be increasingly inclined to view outspoken critics of government policies as mentally ill and in need of psychiatric help and possible civil commitment. But I digress. That’s a whole other topic.

Getting back to young people, Dr. Thomas Friedan, director of the CDC, has characterized the nation’s current fixation on ADHD as an over diagnosis and a “misuse [of ADHD medications that] appears to be growing at an alarming rate.”

Indeed, not that long ago, the very qualities we now identify as a mental illness and target for drugging were hallmarks of the creative soul. Many of the artists, musicians, poets, politicians and revolutionaries whom we have come to revere in our society were unable to sit still, pay attention, concentrate on their work, and stay within the confines which had been set out for them in the classroom.

Visionaries as varied as Mahatma Gandhi, Richard Feynman, John Lennon, Pablo Picasso, Jackson Pollock, Thomas Edison, Susan B. Anthony, Albert Einstein, and Winston Churchill would have all been labeled ADHD had they been students in the public schools today. Legendary filmmaker Woody Allen claims to have “paid attention to everything but the teachers” while in school. Despite being put in an accelerated learning program due to his high IQ, he felt constrained, so he often played hooky and failed to complete his assignments. Of his school days, Gandhi said, “They were the most miserable of his life” and “that he had no aptitude for lessons and rarely appreciated his teachers.” In fact, Gandhi opined that it “might have been better if he had never been to school.”

One can only imagine what the world would have been like had these visionaries of Western civilization instead been diagnosed with ADHD and drugged accordingly. Writing for the New York Times, Bronwen Hruska documents what it was like as a parent being pressured by school officials to medicate her child who, at age 8, seemed to have “normal 8-year-old boy energy.”

Will was in third grade, and his school wanted him to settle down in order to focus on math worksheets and geography lessons and social studies. The children were expected to line up quietly and “transition” between classes without goofing around… And so it began. Like the teachers, we didn’t want Will to “fall through the cracks.” But what I’ve found is that once you start looking for a problem, someone’s going to find one, and attention deficit has become the go-to diagnosis… A few weeks later we heard back. Will had been given a diagnosis of inattentive-type A.D.H.D….The doctor prescribed methylphenidate, a generic form of Ritalin. It was not to be taken at home, or on weekends, or vacations. He didn’t need to be medicated for regular life. It struck us as strange, wrong, to dose our son for school. All the literature insisted that Ritalin and drugs like it had been proved “safe.” Later, I learned that the formidable list of possible side effects included difficulty sleeping, dizziness, vomiting, loss of appetite, diarrhea, headache, numbness, irregular heartbeat, difficulty breathing, fever, hives, seizures, agitation, motor or verbal tics and depression. It can slow a child’s growth or weight gain. Most disturbing, it can cause sudden death, especially in children with heart defects or serious heart problems.

As Hruska relates in painful detail, each time the overall effects of the drugs seemed to stop working, their doctor increased the dosage. Finally, towards the middle of fifth grade, Hruska’s son refused to take anymore pills. From then on, things began to change for the better. Will is now a sophomore in high school, 6 feet 3 inches tall, and is on the honor roll.

The drugs prescribed for Ritalin and Adderall and their generic counterparts are keystones in a multibillion dollar pharmaceutical industry that profits richly from America’s growing ADHD fixation. For example, between 2007 and 2012 alone, sales for ADHD drugs went from $4 billion to $9 billion.

If America could free itself of the stranglehold the pharmaceutical industry has on our medical community, our government and our schools, we may find that our so-called “problems” aren’t quite as bad as we’ve been led to believe. As Hruska concludes:

For [Will], it was a matter of growing up, settling down and learning how to get organized. Kids learn to speak, lose baby teeth and hit puberty at a variety of ages. We might remind ourselves that the ability to settle into being a focused student is simply a developmental milestone; there’s no magical age at which this happens.

Which brings me to the idea of “normal.” The Merriam-Webster definition, which reads in part “of, relating to, or characterized by average intelligence or development,” includes a newly dirty word in educational circles. If normal means “average,” then schools want no part of it. Exceptional and extraordinary, which are actually antonyms of normal, are what many schools expect from a typical student.

If “accelerated” has become the new normal, there’s no choice but to diagnose the kids developing at a normal rate with a disorder. Instead of leveling the playing field for kids who really do suffer from a deficit, we’re ratcheting up the level of competition with performance-enhancing drugs. We’re juicing our kids for school.

We’re also ensuring that down the road, when faced with other challenges that high school, college and adult life are sure to bring, our children will use the coping skills we’ve taught them. They’ll reach for a pill.

VICTORY: Court Dismisses Charges Against Mich. Farmer Fined for Displaying Political Billboards Critical of Obama on 40-Acre Private Property

Posted: April 8, 2013 in Uncategorized
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UPDATE [4-8-13]: In response to First Amendment arguments raised by The Rutherford Institute, a state district court has dismissed charges against a Michigan cattle farmer who was cited and fined for displaying political banners critical of the Obama administration on a farming truck parked on his private 40-acre lot. The banners mounted by Vern Verduin on his farm truck proclaim “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.” In censuring Verduin, Gaines Township officials alleged that his political banners violate the township’s sign ordinance, which allows only business-related signs on vehicles, restricts the size to no more than 20 square feet, and limits the time period for displaying political signs from 45 days before an election to ten days past an election. Upon review, Judge Steven Servaas of the 63rd District Court found the sign ordinance for the Gaines Township to be unconstitutional, agreeing with The Rutherford Institute’s arguments that the ordinance violated the First Amendment because it treated commercial speech and advertising more favorably than political speech. Read more here.

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The latest news from The Rutherford Institute…

Attorneys for the Rutherford Institute have come to the defense of a Michigan cattle farmer who was cited and fined for displaying political banners critical of the Obama administration on a farming truck parked on his private 40-acre lot.

The banners mounted by Vern Verduin on his farm truck proclaim “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.” In censuring Verduin, Gaines Township officials insist that his political banners violate the township’s sign ordinance, which allows only business-related signs on vehicles, restricts the size to no more than 20 square feet, and limits the time period for displaying political signs from 45 days before an election to ten days past an election. Rutherford Institute attorneys will appear in state district court on Friday, March 22, to challenge the township’s actions and sign ordinance as an unconstitutional violation of Verduin’s right to free speech, free expression and equal treatment under the law.

“Americans have a clear First Amendment right to freedom of political expression, whether that ‘expression’ takes place at a podium, on a t-shirt, a billboard, a picket sign, or on the side of a farm truck parked on private property as in the case of Vern Verduin,” said John W. Whitehead, president of The Rutherford Institute. “By denying this farmer the right to freely express his political views on his own property, no less, city officials have essentially done away with one of the key ingredients in a democracy such as ours, which is the right to freely speak our minds to and about those who represent us. It is our hope the courts will recognize and rectify this wrong.”

In September 2012, Gaines Township officials ordered Vern Verduin, who owns and operates a 40-acre cattle farm, to take down two political banners displayed on one of his farming trucks, which was parked on his private property. The banners proclaimed, “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.”

City officials justified their demand by pointing to the city’s sign ordinance, which permits business-related signs on vehicles, restricts political signs of more than 20 square feet, and limits the time period for displaying political signs to a time spanning 45 days before an election until ten days past an election.

Standing firm in his free speech rights and insisting that politics is a year-round discussion, Verduin continued to display the political banners and signs on his private property. At the same time, the cattle farmer called on city officials to amend the ordinance in order to better respect the rights of individuals wishing to exercise their free speech rights on private property by displaying political signs. City officials refused to accommodate Verduin’s request, and in January 2013 cited him for violating the sign ordinance, which levies a $50 fine.

In coming to Verduin’s defense, Rutherford Institute attorneys are challenging the city’s actions and its ordinance as a clear violation of Verduin’s rights under the First and Fourteenth Amendments to the United States Constitution. Institute attorneys will appear in the 63rd District Court in Kent County, Michigan at 9:45 am on Friday, March 22, to request that the charges against Verduin be dismissed.

Millbrook v. US: Holding the Government Accountable for Misconduct by Law Enforcement Officials

Posted: April 1, 2013 in Uncategorized
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“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”―Thomas Paine

At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, the U.S. Supreme Court’s ruling in Millbrook v. United States is a glimmer of hope in a sea of gloom.

Handed down on the second day of the Court’s same-sex marriage arguments, Millbrook has been largely overshadowed by the debate over marriage equality. However, this ruling should not be overlooked—not only for what it says about the need to hold law enforcement officials accountable to abiding by the law, but more importantly for what it says about the extent to which the government has given itself free rein to abuse the law, immune from reproach.

In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers—whether they’re police officers or prison guards—in the course of their employment. Critics of the government’s tactics hope the Court’s ruling will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees and holding them accountable to respecting citizens’ rights, especially while on the job.

The facts in Millbrook are particularly egregious.

Kim Lee Millbrook is serving a 31-year sentence, reportedly for drug and gun-related charges along with witness intimidation. On March 1, 2010, Millbrook was transferred to a high-security federal prison in Lewisburg, Pa., which specializes in dealing with inmates who are highly disruptive and difficult to manage, including gang leaders. On March 4, 2010, a few days after being installed at the Special Management Unit (SMU) in Lewisburg, Millbrook and his cellmate got into a fight and were temporarily placed in a shower area. Then, according to Millbrook, three prison guards escorted him to the basement holding-cell area, where one guard choked him until he almost lost consciousness and a second guard made Millbrook perform oral sex on him, while a third guard stood watch by the door. Conveniently, no video cameras were monitoring the basement at the time of the alleged assault.

Although Millbrook claims the guards threatened to kill him if he reported the incident, he filed a complaint with prison officials, which then led to a formal investigation. During the course of the investigation, a prison physician determined that Millbrook did not show signs of having been choked, a prison psychologist concluded that Millbrook did not exhibit trauma consistent with a sexual assault, and the prison guards and Millbrook’s cellmate all testified to having no knowledge of any such assault taking place against him. Prison officials also noted that Millbrook had filed a similar complaint against guards at his previous prison, which was eventually dismissed when the charges could not be substantiated.

A non-lawyer relatively well-versed in navigating the legal system, Millbrook turned to the courts for relief in January 2011, suing the federal government for $1.5 million in damages for negligence, assault and battery and requesting a transfer out of the Lewisburg facility.

Neither the federal district court nor the Third Circuit Court of Appeals proved to be receptive to Millbrook’s argument that the prison guards should be held liable under a provision of the Federal Torts Claim Act (FTCA), which allows individuals to sue federal law enforcement officials for misconduct. As reporter Ailsa Chang explains:

Under the law, the government allows itself to be sued when a government representative commits a tort. A tort is an act done negligently or intentionally that results in injury to someone. However, if the tort was intentional, the law does not allow the lawsuit to proceed — except in cases where the defendant is a law enforcement official. And even in those cases, the federal government can be liable only if the officer was acting “within the scope of his office or employment.”

Although both courts noted that the prison guards’ alleged behavior was troubling, they ducked the issue and dismissed the case on the grounds that the federal government has sovereign immunity—that is, although an egregious wrong may have been committed by a government employee, they cannot be held liable for money damages for their behavior. Specifically, the courts reasoned that the FTCA only applies to “police officers” while they are in the process of making an arrest or seizure, or executing a search.

Undeterred, Millbrook filed a handwritten petition, in pencil no less, to the U.S. Supreme Court, and in a rare show of magnanimity, the Court agreed to hear his case and assigned a lawyer to represent him. Curiously enough, after the Court announced it could hear the case, the U.S. Justice Department—which had defended the government’s actions at every level of the judicial proceedings, including asking the Supreme Court not to take the case—did an about-face and switched its position to argue that the FTCA does apply to prison guards as law-enforcement officials.

The Supreme Court’s subsequent ruling, written by Justice Clarence Thomas, is a technical analysis of the FTCA, to whom it applies and in what circumstances. The bottom line, according to the nine justices in a rare show of agreement, is that the lower courts misconstrued the FTCA, which clearly provides for the government to be held accountable for wrongdoing carried out by law enforcement officials in its employ while on the job. (Although even the FTCA, it must be said, is notable for the many exceptions it provides to shield government officials from wrongdoing.)

Having been given the green light for his lawsuit to proceed, Millbrook still has an uphill battle ahead of him. Indeed, Millbrook has to prove to the lower courts that he was, in fact, sexually assaulted by the guards. Whether or not his allegations prove to be true, however, his case is a painful reminder that such kinds of abuses are not only par for the course in our nation’s overcrowded prisons but are often tolerated by prison officials.

Inmate Jens Soering’s insightful book One Day in the Life of 179212: Notes from an American Prison (Lantern Books, 2012), with its accounts of therapeutic beatings, rapes and the sense that one is in constant peril, may be the most vivid first-person portrait of the failure of America’s penal system to date. As Soering writes:

“Repeated anonymous surveys have determined that 20 percent of all inmates are forced to have sex each year, and 10 percent are violently raped. The overwhelming majority of these crimes are never reported: a silence maintained out of fear of retaliation from the perpetrators and because of the indifference of prison officials.  In 2004, only 8,210 sexual assaults were documented, even though correctional experts testifying at a U.S. Senate hearing in 2003 estimated the actual number of cases to range from 250,000 to 600,000per year.”

The question that we must ask ourselves is what kind of government not only turns a blind eye to such abuses but absolves itself of any responsibility for righting such wrongs?

The answer is a government whose system of “checks and balances” has given way to a concerted effort by all branches of the government, including the courts, to maintain their acquired powers at all costs. Looked at from this perspective, while Millbrook was, indeed, a welcome respite from the Supreme Court’s usual practice of giving law enforcement officials a “get out of jail free” card, it may prove in the long run to be little more than a bone tossed to a dog, a small concession amidst a sea of abuses.

Jeff Bucholtz, the lawyer who argued against Millbrook and in favor of government immunity, didn’t appear to view the ruling as much of a loss. Responding to the assertion that the Millbrook ruling ensures that the “government now has a direct pocketbook interest in stopping this kind of behavior,” Bucholtz pointed out that “FTCA judgments are paid by an unlimited fund provided by Congress, so it doesn’t hurt prison guards or their supervisors when judgments are paid out under the statute.”

In other words, it’s just business as usual, with the taxpayer forced to pay the penalty for the government’s misdeeds. In days gone by, this payment to right a wrong was called “blood money,” and it was paid by the guilty party to his victim. Could it be that the government has managed to slip the noose from around its own neck, leaving us to hang for the crime—figuratively speaking, of course? — John W. Whitehead

StingRays and Other Surveillance Devices: Using Your Cell Phone to Track Your Every Move

Posted: March 29, 2013 in Uncategorized
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“There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”—George Orwell,1984

Advanced technology now provides government agents and police officers with the ability to track our every move. The surveillance state is our new society. It is here, and it is spying on you, your family and your friends every day. Worse yet, those in control are using life’s little conveniences, namely cell phones, to do much of the spying. And worst of all, the corporations who produce these little conveniences are happy to hand your personal information over to the police so long as their profit margins increase. To put it simply, the corporate-surveillance state is in full effect, and there is nowhere to hide.

Using the data transferred from, received by, and stored in your cell phone, police are now able to track your every move. Your texts, web browsing, and geographic location are all up for grabs. Using “stingray” devices, often housed in mobile surveillance vans, federal agents track the cell phones of unsuspecting people. By triangulating the source of a cell phone signal, agents are able to track down the whereabouts of the person holding it. Just recently, the Washington Post reported that federal investigators in Northern California routinely used StingRays “to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.”

The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity…

The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant…

Chris Soghoian, the ACLU’s principal technologist, said cell-site simulators are being used by local, state and federal authorities. “No matter how the StingRay is used — to identify, locate or intercept — they always send signals through the walls of homes,” which should trigger a warrant requirement, Soghoian said. “The signals always penetrate a space protected by the Fourth Amendment.”

These surveillance sweeps target all cell phone signals, not just those of criminal suspects. Examples of extralegal police surveillance in the years since 9/11 are numerous, from the NSA’s warrantless wiretapping program to the NYPD’s spy network that targeted Muslims in the New York area.

Unfortunately, the now widespread tactic of spying on people via their cell phones resides in a legal grey area, which has allowed police agencies to take drastic steps to record the daily activity of all Americans. Whereas cell phone tracking once fell only in the purview of federal agents, local police departments, big and small, are beginning to engage in cell phone tracking with little to no oversight. Small police agencies are shelling out upwards of $244,000 to get the technology necessary to track cell phones. And as you might expect, most police departments have attempted to keep knowledge of their cell phone tracking programs secret, fearing (as they should) a public backlash.

Federal courts are divided on the issue, some saying that a warrant is necessary before executing a cell phone search. However, the United States Court of Appeals for the Sixth Circuit recently ruled that tracking the location of a cell phone without a warrant is legal and, thus, not a violation of the Fourth Amendment. This lack of concern for the Fourth Amendment—which requires reasonable suspicion that you’re up to something illegal before the police conduct surveillance on you—is widely shared among the federal and state courts. In fact, courts issue tens of thousands of cell tracking orders a year, allowing police agencies to accurately pinpoint people’s locations within meters. Unless they’re charged with a crime, most people remain unaware that their cell data has been tracked.

Although government agencies are increasingly acquiring the technology to track cell phones themselves, most rely on cell phone companies to provide them with the user data. In July 2012, it was revealed that cell phone carriers had responded to an astonishing 1.3 million requests from police agencies for personal information taken from people’s cell phones. One of the larger carriers, AT&T, responds to roughly 700 requests a day, 230 of which are so-called “emergencies,” exempting them from standard court orders. This number has tripled since 2007. A relatively small carrier, C Spire Wireless, said that it received 12,500 requests in 2011. Sprint received the most requests, averaging 1,500 per day. The number of requests is almost certainly higher than 1.3 million, and the number of people affected much higher, because a single request often involves targeting multiple people.

The problem is exacerbated by the fact that the telecommunications companies which produce cell phone technology are more than happy to comply with government requests for personal information. They even make a handsome profit from selling the details of your private life to the government. Indeed, cell phone carriers are making a killing charging police agencies “surveillance fees”—from a few hundred to a few thousands dollars per request—to share information on a person’s location and activities. AT&T collected $8.3 million in 2011 for their surveillance activities, up from $2.8 million in 2007.

Telecommunications providers have also come up with price lists for easy reference for police agencies. For example, “Sprint charged $120 per target number for ‘Pictures and Video,’ $60 for ‘E-Mail,’ $60 for ‘Voicemail,’ and $30 for ‘SMS Content.’” Sprint actually has 110 employees who work solely on responding to information requests from the government. And government agents need not worry about maximizing resources by seeking only high priority targets. One agent can track 200 or 300 people at a time.

On the rare occasion that a telecom corporation resists a police effort to spy on a particular cell phone customer, there are methods by which companies are coerced to comply with the data requests. Telecoms are frequently harassed by the FBI with National Security Letters (NSL), which are demands for user information without warrant or judicial oversight. These include a gag order, which prevents the recipient from discussing the demand with others, including the media. Roughly 300,000 of these NSLs have been sent out since 2000, implying a massive spying effort on the part of the federal government. One telecom is currently in a battle with the federal government over an NSL demanding user data. The telecom refused to abide by the NSL, and in response the federal government has sued the telecom, insisting that their refusal jeopardizes national security. The end logic of this is that our private data is actually not private. The federal government claims that knowing our personal information is critical to preserving national security, and thus neither telecoms nor users may resist the sharing of that information.

Of course, corporations are just as interested in tracking people’s daily activities as the government. Cell phone companies and the software companies that create applications for their devices track your personal information so that they can market their services to you. Unfortunately, this leads to mass aggregation of user data which is then used by government agents to spy on and track all cell phone users. For example, Carrier IQ, a software company, and cell phone manufacturers HTC and Samsung are currently in the midst of a class-action lawsuit brought by Android phone users whose phone activities are recorded by a “rootkit,” a piece of software surreptitiously installed on cell phones that records the keystrokes of phone users. The FBI denied a December 2011 FOIA request to determine how the government was utilizing Carrier IQ’s software, as it could have an adverse impact on ongoing investigations. The agency’s refusal suggests that not only is Carrier IQ spying on cell phone users for their corporate purposes, but that federal agents are utilizing the software to conduct their own spying campaigns.

Unfortunately, with intelligence gathering and surveillance doing booming business, and corporations rolling out technologies capable of filtering through vast reams of data, tapping into underseas communication cables, and blocking websites for entire countries, life as we know it will only get worse. As journalist Pratap Chatterjee has noted, “[T]hese tools have the potential to make computer cables as dangerous as police batons.” Telecoms hold on to user data, including text messages and Internet browsing history, for months to years at a time. This, of course, has some ominous implications. For example, British researchers have created an algorithm that accurately predicts someone’s future whereabouts at a certain time based upon where she and her friends have been in the past.

So where does this leave us? As George Orwell warned, you have to live with the assumption that everything you do, say and see is being tracked by those who run the corporate surveillance state.

Victory: Unanimous Supreme Court Rules that Citizens Can Hold Federal Government Liable for Abuse by Law Enforcement Officers (Police, Prison Guards)

Posted: March 28, 2013 in Uncategorized
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In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court has concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers in the course of their employment. The Court’s ruling dovetails with arguments put forward by The Rutherford Institute in its amicus brief, which urged the Court to enforce the plain meaning of federal statutes allowing citizens to sue the government for injuries intentionally inflicted by law enforcement officers.

In striking down lower court rulings, the justices held that the courts had erred in dismissing a prisoner’s lawsuit alleging that three prison guards had brutally and sexually assaulted him. The lower courts justified their ruling under the Federal Tort Claims Act (FTCA), which allows individuals to sue the government for misconduct by law enforcement officials only if the injury inflicted occurs while the officers are in the course of making an arrest or seizure, or executing a search. In their amicus brief, Rutherford Institute attorneys asked the Supreme Court to protect citizens from government brutality by eliminating the restriction on government liability.

Hopefully, the Supreme Court’s ruling in Millbrook will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees—whether they’re police officers or prison guards—and holding them accountable to respecting citizens’ rights, especially while on the job. At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, this ruling is at least an encouraging glimmer in the gloom.

In 1948 Congress enacted the Federal Tort Claims Act (FTCA) to provide a limited waiver of “sovereign” immunity for the negligent acts of government agents, despite the fact that the United States is generally not liable for injuries to persons caused by the negligent or intentional acts of government employees and agents. The original version of the FTCA preserved government immunity for “intentional torts” such as assault, battery and false imprisonment.  However, in 1974, Congress amended the FTCA to allow the government to be sued for intentional torts by “law enforcement officers.”

In 2011, Kim Millbrook, a prisoner at a federal penitentiary in Lewisburg, Pennsylvania, filed an FTCA lawsuit against the United States alleging that three prison guards had brutally assaulted him in the basement of the prison, forcibly restraining Millbrook and forcing him to perform oral sex. Millbrook’s lawsuit was dismissed by a federal district court which ruled that the 1974 amendment to the FTCA allowing for intentional tort claims against law enforcement officers only applies to acts that occur during searches, while seizing evidence, or while making arrests. The district court’s decision was affirmed on appeal to the U.S. Court of Appeals for the Third Circuit, which, relying on prior rulings from the circuit, held that because the 1974 amendment defines “law enforcement officers” as officers “empowered by law to execute searches, to seize evidence, or to make arrests,” the scope of the waiver of immunity for intentional torts applies only where the harmful act occurs in the course of one of those three duties. The U.S. Supreme Court rejected this interpretation, noting that the plain language of the law does not restrict the waiver of immunity to acts that occur during searches, seizures, and arrests. — John W. Whitehead

Governmental Highway Robbery: Asset Forfeiture and the Pillaging of the American People

Posted: March 28, 2013 in Uncategorized
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“This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting.”—Public Defender John Rekowski

Long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting. To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights. You’re nothing more than a serf or a slave.

The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty, or property, without due process of law. Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.

The latest governmental scheme to deprive Americans of their liberties—namely, the right to property—is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure.

For example, the federal government recently attempted to confiscate Russell Caswell’s family-owned Tewksbury, Massachusetts, motel, insisting that because a small percentage of the motel’s guests had been arrested for drug crimes—15 out of 200,000 visitors in a 14-year span—the motel was a dangerous property. As Reason reports:

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate. One couple in Anaheim, Calif., is presently battling to retain ownership of their $1.5 million office building after the U.S. Drug Enforcement Administration filed an asset-forfeiture lawsuit against them because one of their tenants allegedly sold $37 in medical marijuana to an undercover agent.

Some states are actually considering expanding the use of asset forfeiture laws to include petty misdemeanors. This would mean that property could be seized in cases of minor crimes such as harassment, possession of small amounts of marijuana, and trespassing in a public park after dark.

As the Institute for Justice points out:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.  Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head.  With civil forfeiture, your property is guilty until you prove it innocent.

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the War on Drugs. By asserting that someone’s personal property, a building or a large of amount of cash for example, is tied to an illegal activity, the government—usually, the police—then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was obtained legally.

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits. For example, under a federal equitable sharing program, police turn cases over to federal agents who process seizures and then return 80% of the proceeds to the police.

Asset forfeitures can certainly be lucrative for cash-strapped agencies and states. In the fiscal year ending September 2012, the federal government seized $4.2 billion in assets, a dramatic increase from the $1.7 billion seized the year before. Between 2004 and 2008, police in Jim Wells County, Texas seized over $1.5 million. The Metropolitan Police Department in Washington, D.C. collected $358,000 from civil forfeiture in fiscal year 2011, and $529,000 from federal equitable sharing. The State Attorney’s Office in Madison County, Illinois, made $500,000 from asset forfeiture over the course of eight years.

Often, these governmental property grabs take the form of highway robbery (literally), where police officers extract money, jewelry, and other property from unsuspecting motorists during routine traffic stops. As Mother Jones quips, “forfeiture corridors are the new speed traps.” Indeed, states such as Texas, Tennessee, and Indiana are among the worst offenders. Mother Jones continues:

You all know what a speed trap is, right? If you have a highway running through your small town, you can make a lot of money by ticketing out-of-state drivers who are going one or two miles per hour over the speed limit. How many victims are going to waste time trying to fight it, after all? But have you heard about “forfeiture corridors”? That’s a little different — and quite a bit more lucrative. All you have to do is pull over an out-of-state driver for supposedly making an unsafe lane change, have your police dog sniff around for a bit of marijuana residue, and then use civil asset forfeiture laws to impound any cash you might find. Apparently it’s especially popular on highways leading into and out of casino towns.

In typical fashion, these police traps tend to prey on minorities and the poor, as well as undocumented immigrants and individuals who happen to have large amounts of cash on hand, even for lawful reasons. One such person is Jerome Chennault, who fell prey to Madison County, Illinois’ forfeiture corridor in September 2010. En route to Nevada after a visit with his son, Chennault was pulled over by police for allegedly following another car too closely. When police asked to sweep Chennault’s car with a drug dog, Chennault obliged, believing that he had done nothing wrong and had nothing to hide and completely unaware that he had fallen into a forfeiture trap.

During the search, the drug dog alerted on a black bag in the back seat of the car which contained about $22,000 in cash. The money, Chennault explained, was intended for a down payment on a home.  The dog did not find any drugs in the car, nor was there any evidence of criminal activity. However, instead of letting Chennault go on his way with a traffic citation, the police confiscated the cash, claiming that since the drug dog alerted to it, it must have been used in the commission of a drug crime. Chennault challenged the seizure in court, after months spent traveling to and from Illinois on his own dime, and eventually succeeded in having his money returned, although the state refused to compensate him for his legal and travel expenses.

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing. Between 2006 and 2008, for instance, Tenaha police seized roughly $3 million.

As Roderick Daniels discovered, it doesn’t take much to get pulled over in a forfeiture corridor like Tenaha’s. Daniels was stopped in October 2007 for allegedly traveling 37 mph in a 35 mph zone. He was ordered to hand over his jewelry and the $8,500 in cash he had with him to purchase a new car. When he resisted, he was taken to jail, threatened with money-laundering charges and “persuaded” to sign a waiver forfeiting his property in order to avoid the charges.

In an even more egregious case, Jennifer Boatright and Ron Henderson, an interracial couple travelling through Tenaha, were forced to forfeit the $6,000 cash they had with them to buy another car when police threatened to turn their young children over to Child Protective Services. Another traveler, Maryland resident Amanee Busbee, was also threatened with losing her child to CPS after police stopped her, her fiancé and his business partner when they were en route to Houston with $50,000 to complete the purchase of a restaurant. Boatright and Busbee were eventually able to reclaim their money after mounting legal challenges.

Comparing police forfeiture operations to criminal shakedowns, journalist Radley Balko paints a picture of a government so corrupt as to render the Constitution null and void:

Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.

In an age in which the actions of the police—militarized extensions of the government—are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors. — John W. Whitehead

Walking Narrow Line, U.S. Supreme Court Declares Use of Drug-Sniffing Dogs by Police to Carry Out Warrantless Searches of Homes Unconstitutional

Posted: March 26, 2013 in Uncategorized
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Walking a narrow line, the U.S. Supreme Court has ruled 5-4 in Florida v. Jardines that the use of drug-sniffing dogs by police to carry out warrantless searches of homes is unconstitutional.

In keeping with the Court’s recent decision in Florida v. Harris, in which the justices ruled unanimously that police may use drug dogs to conduct warrantless searches during traffic stops, the Court did not address the question of whether a drug dog’s sniff constitutes a violation of one’s reasonable expectation of privacy. Instead, the Court ruled that an officer bringing a drug-sniffing dog to the front of a home without a warrant constitutes an unconstitutional invasion of private property.

In an age in which the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts, it’s difficult to really celebrate this ruling given that it basically just gives a head nod to the Fourth Amendment. What we are experiencing today is a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. It remains to be seen whether today’s ruling by the Supreme Court proves to be little more than a band-aid fix to a rapidly worsening condition.

Florida v. Jardines arose out of an incident that took place in November 2006, when Miami police responded to an “anonymous” tip that marijuana was being grown at the residence of Joelis Jardines. After police surveillance of the Jardines home failed to reveal any incriminating evidence, the police brought in a drug-sniffing dog and handler to inspect the property at 7:30 a.m. The police handler walked the dog up to the front door on a leash and the dog allegedly “alerted” to the scent of contraband, which was reported to the investigating police who also approached the door and allegedly smelled marijuana. Using this information, the police obtained a warrant to search the Jardines residence, resulting in the seizure of marijuana plants.

In court, Jardines’ lawyer moved to suppress the evidence obtained under the warrant, insisting that the warrant itself was invalid because of its reliance on the alert by the drug-sniffing dog. On appeal, the Florida Supreme Court ruled that the use of detection dogs at private residences raises significant privacy concerns. The U.S. Supreme Court, having ruled in previous cases that dog sniffs do not constitute “searches” for purposes of the Fourth Amendment, agreed to review the state court decision.

In weighing in on the matter, The Rutherford Institute had asked the Supreme Court to declare the warrantless use of drug-sniffing dogs in both scenarios, searches of homes and vehicles, to be unconstitutional in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. In an amicus curiae brief filed with the U.S. Supreme Court in Florida v. Jardines, Institute attorneys cited mounting empirical evidence that narcotics detection dogs are unreliable and inaccurate, pointing out that both anecdotal evidence and research show that dogs frequently signal false alerts and show sensitivity to handler bias. Institute attorneys also pointed out that the amount of time it takes for the dogs to carry out a detection sniff on the perimeter of a private residence constitutes a trespass under Fourth Amendment jurisprudence.

The Court ruled unanimously in a similar case, Florida v. Harris, that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. — John W. Whitehead

VODCAST: School Truancy Laws Jail Parents and Levy Excessive Fines

Posted: March 23, 2013 in Uncategorized
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My new post on school truancy laws that jail parents and levy excessive fines. Disguised as well-meaning attempts to resolve attendance issues in the schools, these truancy laws are nothing less than stealth maneuvers aimed at enriching school districts and court systems alike through excessive fines and jail sentences, while the ones being singled out for punishment—more often than not from middle- to low-income families—are the very ones who can least afford it.

Watch it here: 

And if you missed my commentary on the subject, you can catch up on your reading here. — John W. Whitehead

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