Article – Riley’s Implications for Fourth Amendment Protection in the Cloud

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The United States Supreme Court held in Riley v. California that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

It seems like the what is on the physical cell phone is just the root of the search and seizure issue.  Many cell phones are connected to much more information than the physical device can hold.  Extending the capacity to access documents, cloud storage can vastly increase what a cell phone has access to.

Acting as an extension of the physical cell phone, it is not completely clear what the Fourth Amendment search and seizure ramifications are.

Riley’s protection of cloud-based data for cell phone searches, however, does not address the broader question of whether information stored in the cloud is entitled to Fourth Amendment protection in other contexts. Indeed, the Court went out of its way to state that Riley did ‘not implicate the question [of] whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.’ The Court also distinguished the facts of Riley from those in Smith v. Maryland, one of the principal cases to apply the so-called “third-party doctrine.” The third-party doctrine, which provides that information voluntarily revealed to third parties is not protected by the Fourth Amendment, may pose the biggest obstacle to whether cloud-based data receives Fourth Amendment protection, since any data stored in the cloud is necessarily conveyed to third-party servers. Yet by sidestepping the third-party doctrine in Riley, the Court never had to address how the doctrine applies to private data stored across remote servers.

Nevertheless, while failing to explicitly afford Fourth Amendment protection to cloud-based data, Riley still provides the best evidence yet that the Court may be ready to reconsider the third-party doctrine and to recognize Fourth Amendment protection for personal data stored in the cloud.

– Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J. F. 73 (2014), http://www.yalelawjournal.org/forum/rileys-implications-in-the-cloud.

 

Predictive Policing in Phoenix

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Algorithmic crime-fighting, based on predictive technology makes makes me nervous.  Let me just say that upfront.

The Phoenix Police Department probably predicted I would write that…

It appears that Phoenix Police Department uses predictive analytics, as at least a tool to aid them in policing the sixth most populous city in the United States.  My Open Records request with the Phoenix Police Department is pending, without a timetable for completion.  While we wait, I think it is appropriate to look at what we do know about predictive policing.

Predictive Policing

There is not a whole lot of academic information on predictive policing, in part because predictive analytics is such a young field in and of itself.

Probably the best definition I could find of this mysterious topic came from the RAND Corporation, a non-profit global policy think tank.

Predictive policing is the application of analytical techniques—particularly quantitative techniques—to identify likely targets for police intervention and prevent crime or solve past crimes by making statistical predictions.

Predictive Policing, RAND Corporation, at *5.

Through an analysis of existing academic papers, vendor literature, and police use of predictive analytics the RAND Corporation came up with four types of predictive policing.

  • Predicting crimes – forecasts places and times with an increased risk of crime
  • Predicting offenders – potential for an individual to re-offend in the future
  • Predicting perpetrators identities – profiling likely offenders
  • Predicting victims of crimes – identify groups or, in some cases, individuals who are likely to become victims of crime.

– Predictive Policing, at *6.

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Mental Health Call Diffused By Phoenix PD

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Phoenix police handled a very difficult situation where a man who suffers from schizophrenia wanted to harm others.  According to the ABC 15 News reporting.

At one point, the man had a knife and lunged at an officer.  It is reported the police officer drew his gun and thought about using it to protect himself, he ultimately did not use it.  The situation was diffused and the man was taken in for a psychiatric evaluation.

The result was not the same in mid-August where a woman wielding a hammer was killed during a mental health call when a Phoenix police officer shot her.

Looking through the index of the Phoenix Police Department Operation Orders it appears the section Mental Health Orders Tactical Response 9.7.3.F governs how mental health calls are dealt with.

I cannot analyze or share with the readers Section 9.7.3.F because it is restricted in the copy Operation Orders I have.  As this topic is in the news a few times recently, I will file an public records request and see if I can get access to this particular provision and shed some light on how Phoenix Police are expected to dealt with mental health calls.

It is important to note, once again, the Phoenix Police estimate they serve ten mental health calls a day.  It appears the vast majority of these are handled successfully without incident, such as the present case.  The police are put in a very complex and potentially very dangerous situation when dealing with mental health calls.

One residual thought I have from both incidents is why are guns only mentioned as weapons the police used or considered?  It is curious that non-lethal options are not mentioned.  It is not clear from the news articles if non-lethal means were available or used.  The Operation Orders should be able to provide a clearer picture about this.  And I hope it is a question that can be answered.

Article – The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

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The posse is in effect!

This is a really interesting article I came across that will be published in the near future in a prominent law journal.

I know this article was written through a Colorado lens and would be great material for my Colorado Common Law site, but here in Maricopa County, Arizona we have one of the most notorious sheriff’s — Sheriff Joe Arpaio, “America’s Toughest Sheriff.”

In 2013, Sheriff Joe Arpaio made headlines when he proposed the idea of armed Sheriff posse members to patrol schools to increase school safety.  In an ABC News story from 2013, it states that approximately 500 civilian volunteers are certified to carry a weapon as a part of Maricopa County Sheriff Posse.

Sheriff’s posses doe not receive a whole lot of attention, either in the media or legally.  This is a really interesting look at a volunteer arm of law enforcement.

The Sheriff’s posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.

The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users. Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties. Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.

Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century. The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed.

Part III provides a case study of the posse comitatus in modern Colorado. Posses have thwarted the escapes of criminals, including serial killer Ted Bundy. Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs’ offices and police departments on an as-needed basis.

Finally, Part IV considers the relation between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a “well-regulated militia,” and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other. One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus.

Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state.

– David B. Kpopel, Independence Institute; Denver University – Sturm College of Law, SSRN.

 

 

Unionizing Phoenix’s Strippers

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You don’t have to watch the latest Franklin and Bash episode to know that strippers sometimes get a raw deal in society.  I can’t stop to help thinking that maybe if strippers unionized it would help cure some societal ills strippers face in employment, but it could also help the community as well.

What would it be like if the strippers in Phoenix unionized?  Hhhmmmmm.

I have been playing around with this idea for a while, long before I saw the Franklin and Bash try to unionize all the exotic dancers of Los Angeles, Season 4, Episode 6.  Seriously, if all the strippers in the city of Phoenix had a union to ensure they earned at least minimum wage, discrimination is kept in check (pregnancy discrimination comes to mind), and would be protected by the National Labor Relations Board in case they wanted to strike or picket (which would be interesting) —  it could help cure a lot of problems.

*** This article is not based off of any strip club in Phoenix and is just a generalization from what I have read about in the industry.  I do not know how any of the strip clubs in Phoenix are run, I only know the applicable laws governing employment.

Gorgeous Librarians

– Photo Credit: Thomas Hawk, Flickr

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Article: Collateral Consequences of Criminal Convictions – Employment in Arizona

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One of the consequences of a criminal conviction is difficulty in gaining employment the debt to society has been repaid. It is a referred to as a collateral consequence because it is not a part of the intended punishment – is a secondary effect.

A civil rights movement, known as ‘ban the box’ aims at persuading employers to remove from their hiring applications the check box that asks if applicants have a criminal record.  This article deals with the state of Arizona asking applicants if they have a prior criminal record.

Arizona law states a person shall not be removed from employment consideration by the state, unless the “offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”  Ariz. Rev. Stat. §904(E).  Deciding what offense bears a reasonable relationship to the employment is not always clear, and leaves substantial discretion to the hiring agency.

The author of the article makes the point that since so many professions require state certification, licensing, or a permit to operate, this statute touches many industries in Arizona.

Collateral consequences are hidden sanctions through federal, state and local statutes, regulations and policies that affect the rights and responsibilities of rehabilitated persons after the penalty of a criminal conviction has been completed. Collateral consequences place a continuing burden on individuals seeking a fresh start in life thereby making relief from the consequences more elusive.

Penny Wilrich, Collateral Consequences of Criminal Convictions – Employment in Arizona, SSRN Elibrary.

 

Arizona Proposes Hotels Background Checks for Employees

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Arizona hotels have come under fire for potential negligent hiring of employees of who have unfettered access to rooms.  During the last two years a couple of hotels in Maricopa County have hired employees who were convicted felons, gave them access to hotel rooms, and allegedly the former employees sexually assaulted guests.

Now, a few state lawmakers are looking into whether background checks should be required for certain employees who work at hotels.

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Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

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A Phoenix apartmment complex is found of uninhabitable by a city court judge.

After a non-jury trial, Judge Lori Metcalf, of the Phoenix Municipal Court found Woodbridge Apartments guilty of 385 out of 406 criminal counts.  That is a 94.8% guilty rate.  Sentencing is scheduled for September 19, 2014. Woodbridge Apartments are located at 6635 North 19th Avenue, Phoenix, Arizona.

Deputy Director of the Phoenix Department of Neighborhoods Tim Boling told ABC 15 News, “this case is probably the most extreme resistance that he has encountered in the city’s efforts to bring a property into compliance.”

This case surpasses the normal landlord-tenant issues moving into issues of basic civil rights.  No one should have to live in squalor.  It took a couple of years, but props to the City of Phoenix prosecutors for pursuing this case.

I haven’t found the legal documents anywhere else on the internet.  I thought I would share them since this is appears to be an extraordinary case for the City of Phoenix.  See the criminal findings by Judge Metcalf below.  Also, the entire civil complaints against Woodbridge Apartments from 2012 are also provided below.

Woodbridge Apartments - Phoenix, Arizona

Woodbridge Apartments – Phoenix, Arizona – Photo taken by AzCommonLaw

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Article – Free Speech and Guilty Minds

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The United States Supreme Court is poised to decide whether the true threats exception to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats.  United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013).

True threats what?  Yep.  In First Amendment theory, when an individual makes an objectively true treat, courts will look to the First Amendment to see whether that speech is protected or not by examining the subjective intent.  Since a threat is generally a violation of criminal law, a person may say, “look, I was only joking.  The First Amendment protects my right to make jokes without government punishment.” The person’s intent was to make a joke, not to make a threat.  That is how subjective intent can be the deciding factor whether a threat is protected by the First Amendment or not.

The United States Supreme Court determined in Virginia v. Black, 538 U.S. 343 (2003) “true threats” are not protected by the First Amendment.  “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotations omitted).

Arizona has had a few of its own true threat cases that have gone before state appellate courts.  In fact, there is a case currently in Maricopa County Superior Court dealing with a similar fact pattern to the Elonis case.  I wrote earlier about a New York man who threatened Nancy Grace and Jane Velez-Mitchell via twitter while they covered the Jodi Arias trial.  I am not sure if the true threats doctrine is being used in this case or not, but it could potentially based upon the media’s fact patterns.

This is a really good article that goes into depth in this hot topic.  It discusses the correlation between free speech and guilty minds.  It is a good read to stay up to date on the latest First Amendment trends and to prepare for the United States Supreme Court upcoming term.

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Leslie Kendrick, Free Speech and Guilty Minds, 114 Col. L. Rev. 1254.

Article – Public Accommodations Under the Civil Rights Act of 1964

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Title II of the Civil Rights Act is turning 50 this year.  Yep, that makes it officially middle-aged.  It is not a young law anymore, nor is an old law.  Middle-aged seems apropos for this law. 

The law is still being argued and debated about its application.  For example, I have argued recently, police departments have an affirmative duty under Title II of the Civil rights Act and the Americans with Disabilities Act to make reasonable accommodations during investigations for those who they know ahead of time suffer from serious mental illnesses.

As with any anniversary, it is a good time to be retrospective.  While I don’t agree with all the conclusions this article makes, I think it is a good timely critical analysis of a perhaps under-recognized piece of legislation in present day society. 

 On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to sup-press the free entry of firms that would otherwise target minority customers in competitive markets.

The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.

The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.

Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241.

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