September 2014 Legal Report

Strategic Security
September 2014 Legal Report
 

US JUDICIAL DECISIONS

Deadly force. The U.S. Supreme Court has affirmed the authority of police to use deadly force to stop high-speed chases on streets and highways. In its opinion, the Court ruled that police may start shooting at a fleeing vehicle and continue shooting until they are satisfied that the threat to safety is over.

Around midnight on July 18, 2004, Lieutenant Joseph Forthman of the West Memphis, Arkansas, Police Department pulled over a white Honda Accord be­cause the car had a headlight out. Donald Rickard was driving the Accord and Kelly Allen was in the passenger seat. Forthman asked Rickard to step out of the car after failing to produce his driver’s license and appearing nervous. Instead of complying, Rickard drove away along the interstate highway.

Forthman then chased him and was joined by five other police cruisers. They attempted to stop Rickard using a rolling roadblock, but were unsuccessful and pursued him through traffic at speeds exceeding 100 miles per hour. Rickard eventually exited the interstate, made a quick right turn, and hit one of the police cruisers, causing his Accord to spin into a parking lot and collide with another police cruiser. Rickard then put his car into reverse “in an attempt to escape,” and as he did, two police officers exited their vehicles and one of them pounded on the passenger-side window with his gun in his hand.

Rickard’s car then made contact with another police cruiser, his tires began spinning, and the car rocked back and forth, indicating that he was continuing to press on the gas. At that point, one of the officers fired three shots into the Accord before Rickard was able to get away. Two other officers continued to fire at the car as it went down the street, bringing the total number of shots fired to 15. Rickard lost control of the car and crashed into a building. He and Allen both died from a combination of gunshot wounds and injuries sustained from the crash.

Rickard’s daughter filed suit against the six individual police officers and the mayor and chief of police of West Memphis. She alleged that the officers used excessive force in violation of the Fourth and Fourteenth Amendments. The officers moved to have the case dismissed because of qualified immunity, a legal theory that prevents government officials from being sued except in specific circumstances, but the district court denied their motion, holding that the “officers’ conduct violated the Fourth Amendment and was contrary to the law that was clearly established at the time in question” when firing at Rickard’s vehicle.

After a series of court procedures, the case reached the U.S. Supreme Court, where the court ruled in favor of the police officers. Writing for the majority, Justice Samuel A. Alito, Jr., stated that the “officers were entitled to qualified immunity because they violated no clearly established law” during the car chase and they did not violate Rickard’s constitutional rights.

Instead, Alito wrote that there was no clearly established law at the time of the incident that prevented police from shooting to stop a high-speed vehicle chase. “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended,” he wrote. (Plumhoff v. Rickard, U.S. Supreme Court, No. 12-1117, 2014)

Privacy. A federal appeals court has ruled that tracking Americans’ movements using data from their cell phones without a warrant violates their Fourth Amendment rights. The court held that the government’s warrantless gathering of an individual’s cell phone site location information violated his reasonable expectation of privacy.

“While it may be the case that…GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy,” the U.S. Court of Appeals for the Eleventh Circuit wrote in its opinion in United States v. Davis. Instead, cell site information “is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.”

The court’s ruling stems from a case involving Quartavius Davis, who was charged and convicted for robbing a series of businesses, including a Little Caesars, a Walgreens, and a Wendy’s, in conspiracy with several other individuals.

As part of its evidence, the prosecu­tion used records from cell phone service providers that showed Davis and his codefendants had made and received phone calls near the locations of six businesses that they were charged with robbing. However, the location data had been obtained by a court order—not by a warrant—and Davis claimed that this action violated his Fourth Amendment rights. He requested that the evidence be suppressed during the trial, but his request was dismissed.

Instead, the prosecution used the cell phone site location data in the trial and Davis was convicted. He appealed the decision, which reached the U.S. Court of Appeals for the Eleventh Circuit. As part of his appeal, he again argued that his Fourth Amendment rights had been violated because the prosecution was able to use records collected from cell phone service providers without a warrant.

The appeals court did not overturn Davis’s sentencing, but it did rule that the government had violated his Fourth Amendment rights because “the government’s warrantless gathering of his cell site location information violated his reasonable expectation of privacy.”

The court asserted this position despite the United States’ arguing that cell site location information is less protected than GPS data because it is less precise. “We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance,” the court wrote.

The court also held that the prosecutor during Davis’s trial had “stressed” that his cell phone use put him near six of the crime scenes. “While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene,” the court explained. “There is a reason­able privacy interest in being near the home of a lover, or a dispensary of med­ication, or a place of worship, or a house of ill repute…. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.”

Despite finding that Davis’ Fourth Amendment rights had been violated, the appeals court did not find that the district court had committed a “reversible error.” Instead, the appeals court said that the officers who obtained Davis’ cell site location data “acted in good faith reliance on an order rather than a warrant” and had a sworn duty to carry out a court order to retrieve that data. (United States v. Davis, U.S. Court of Appeals for the Eleventh Circuit, No. 12-12928, 2014)

US LEGISLATION

Defense. The House of Representatives has passed the National Defense Authorization Act for fiscal year 2014. The act, H.R. 1960, funds the Department of Defense (DoD) and now moves to the Senate.

The bill authorizes funding for the DoD, defense-wide activities, and national security concerns. If passed, the bill would prohibit the DoD from spending more than 75 percent of funds authorized for future biometric architectures or systems until the secretary has submitted an assessment of the future biometrics program.

The bill also prohibits DoD funds from being used to construct or modify facilities in the United States or its territories to house detainees from Guantanamo Bay. Additionally, the bill would prohibit the secretary of DoD from using funds to transfer individuals detained at Guantanamo to the custody or control of their country of origin, or to any other foreign country. However, the secretary would be able to transfer someone by certifying to Congress that the country that the individual is being transported to is not a designated state sponsor of terrorism and has agreed to take steps to ensure the individual cannot engage in terrorist activity.

Additionally, the bill adds whistle­blower protection for active members of the military. The bill would prohibit retaliatory actions, such as a significant change in a member’s duties, responsibilities, or working conditions.

The bill will now be taken up by the Senate.

Communications. The House of Representatives has passed a bill (H.R. 4289) that would create policies and directives to achieve and maintain interoperable communications within the Department of Homeland Security (DHS).

Introduced by Rep. Donald Payne, Jr. (D-NJ), the bill is called the DHS Interoperable Communications Act. It would charge the DHS undersecretary for management with developing policies and maintaining interoperable communications among all of the components of the department.

The bill is cosponsored by Rep. Susan Brooks (R-IN) and Rep. Michael McCaul (R-TX), the chair of the House Homeland Security Committee. The bill will now be taken up by the Senate.

Firearms. Sen. Edward J. Markey (D-MA) and Rep. Carolyn Maloney (D-NY) have introduced bicameral legislation to fund research at the Centers for Disease Control and Prevention (CDC) on firearms.

The measures (H.R. 4707 and S. 2373) would allocate $10 million each year from 2015 to 2020 to conduct, or support, research on firearms safety and gun violence prevention under the Public Health Service Act. Currently, the CDC receives no funding for gun violence research and has devoted only $100,000 each year to conducting a rough annual estimate of the number of Americans injured by shootings.

H.R. 4707 has been referred to the House Energy and Commerce Committee and has 21 cosponsors, while S. 2373 has been referred to the Senate Health, Education, Labor, and Pensions Committee and has four cosponsors.

UK LEGISLATION

Terrorism. The United Kingdom has enacted a new law that allows the government to strip terrorism suspects of their citizenship, even if it makes the suspect stateless. The law was approved by the House of Lords, the upper chamber of the nation’s Parliament, after four months of debate and is part of the Immigration Act 2014. It expands existing laws that allowed the nation to revoke citizenship and its associated rights from dual citizens if they are suspected or convicted of acts of terrorism or disloyalty.

According to the new law, which went into effect in May, if the nation’s home secretary deems that a suspect’s citizen­ship is “seriously prejudicial to the vital interests of the United Kingdom,” it can be revoked immediately without a public hearing. After a suspect’s citizenship has been stripped, he or she has 28 days to appeal to a special immigration court.