2016-2017 moot court practice packet - ncfca information contained on the following pages outline...

October 2016 © NCFCA 2016-2017 Moot Court Practice Packet of 31

2016-2017 Moot Court Practice Packet

On the following pages, you’ll find the practice packet for the 2016-2017 NCFCA moot court problem. While this is only a sample and the competition season problem may look a little different, it should give students, parents, and coaches an idea of what a moot court “record” looks like. The information contained on the following pages outline some of the main arguments for each side, as explained through the lens of the “judges” issuing the fictional opinions.

In competition, students will be limited to material that was contained in the record (although the competition season problem will contain a larger record with more material, including the text of the key cases cited throughout and more factual background). The fictional court opinions also serve to give students an idea of how two the same set of facts can look from two different perspectives, and the importance of “framing” the factual narrative to best sell the legal argument. The competition season problem will be an entirely different case with new facts and a different legal issue. Additionally, this practice packet really contains a single legal issue (whether the officer can be sued for a violation of the Fourth Amendment under these facts) that has been split into two pieces (the violation of the right and the question of whether the right was “clearly established” at the time). This was done for several reasons, but primarily to avoid putting too many legal issues in this packet when the packet’s purpose is to provide a way to quickly get into practice so students can become more comfortable with the event. As a result, the “split” is not entirely even, because there is more legal content related to whether there was a violation of the Fourth Amendment right than there is related to the “clearly established” question. Because of the uneven split in material within this practice problem, moot court advocates may find it useful to both discuss both prongs of the case, or to split the case by Fourth Amendment exception instead (i.e. one student discuss the “search incident to arrest” exception and whether it was “clearly established,” and the other student discuss the “exigent circumstances” exception and whether it was “clearly established”). For the competition season problem, however, there will be two complete legal issues (rather than the single legal issue present in the practice packet), each with multiple pieces for students to learn and discuss.

While the information in this packet may seem daunting at first, we encourage students to jump in and try arguing it anyway. Additionally, students should read the bench brief and overview of the practice problem for assistance in figuring out the key arguments. Finally, students are encouraged to research outside the problem packet—although the in-round citations will be limited to things contained within the record, outside research can often spark different ways of thinking and can lead to better understanding and clearer argumentation.

National Christian Forensics and Communications Association "…addressing life issues from a biblical worldview in a manner that glorifies God."


No. 16-34024 ________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2016

GARRETT WARD, Petitioner,

v.

SKYLAR JOHNSON, Respondent.

_____________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals for the Fourteenth Circuit

________________________________________________________________________


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ARENDELLE

NORTHERN DIVISION ____________________________________________________________________________________

GARRETT WARD, Defendant, vs. No. 15-cv-1331-JHP SKYLAR JOHNSON, Plaintiff.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Skylar Johnson (“Johnson”) filed this lawsuit against Arendelle Bureau of Investigation Special

Agent Garrett Ward (“Agent Ward”) for violation of her Fourth Amendment right to be free from

unreasonable search and seizure. The basis of her claim is that Agent Ward inappropriately accessed the

contents of her cell phone without a search warrant as the Arendelle State Police were arresting

Johnson for a violation of the Arendelle Wiretap Statute. For the reasons discussed below, Agent

Ward’s actions were protected by the doctrine of qualified immunity, and therefore the Court hereby

grants his motion for summary judgment and dismisses Johnson’s case.

I. BACKGROUND

In July 2015, some citizens of Arendelle initiated large, organized protects against what they

perceived as institutionalized police brutality and racism. These protests, like similar protests around the

country, were a response to viral videos of police encounters with African American individuals,

including several videos where police shot and killed suspects during these encounters. This continued

a movement that calls itself “Black Lives Matter” (hereinafter, “BLM”), which has existed in the United

States for several years. It should be noted from the outset that both the Plaintiff and Defendant in this

case are Caucasian, and there have been no allegations that Agent Ward’s actions in this case were

related to unlawful discrimination.

In the last week of July 2015, citizens of Arendelle assembled in Center Park (in the State’s

capital of Arendelle City) to protest alleged systemic racism in policing. From the outset of the protest,

the Arendelle State Police recognized the possible threat that the protests could turn violent, and

enlisted the help of the Arendelle Bureau of Investigation to create the Arendelle Public Safety Task

Force (“Task Force”). The Task Force ensured adequate police, medical, and emergency fire crews


were available to respond around the clock if the protests became violent. Additionally, the Task Force

kept a visible police presence but, according to the facts agreed upon by both parties in this case, kept

their distance to allow protestors room to express their frustration.

In addition to the Task Force’s public actions, they also installed an undercover officer, Melinda

Maze (Officer Maze), into the movement. Officer Maze was able to establish a position of leadership

within the movement, and protestors looked to her and others for direction. Officer Maze was able to

use this influence to discourage protestors from breaking out into violence, and she was also able to

secretly alert the Task Force to potential trouble and the plans of the protestors for subsequent nights

of protesting.

After approximately five days of protesting, one of the protestors, Skylar Johnson, became

suspicious that Officer Maze was not actually part of the protest. One Task Force officer was alerted to

this when he overheard Johnson asking a fellow protestor why Maze always seemed to rationalize the

police conduct. This led the Task Force to attempt to keep an eye on Johnson’s actions, for fear that

Johnson might expose Maze’s undercover identity. Agent Ward testified that he was nervous that, if

Maze’s undercover identity were revealed, the perceived betrayal would lead the protestors to turn to

mass violence and Officer Maze would be their primary target.

On the sixth day of protesting, Agent Ward noticed Johnson secretly videotaping Officer Maze

as Officer Maze spoke to a uniformed police officer at the protest. Agent Ward became concerned that

Officer Maze’s cover was about to be exposed if the video were uploaded to ArendelleBLM.org, an

online message board used by the protestors to communicate. Considering the growing intensity of the

protest, and the fact that protests in other cities had become increasingly violent, Agent Ward feared

for Officer Maze’s safety and radioed other officers to move in and confront Johnson. Agent Ward and

the other officers approached Johnson, and Agent Ward asked Johnson if she had Maze’s permission to

videotape her. Johnson replied that she did not.

After Johnson replied that she did not have permission to videotape Maze, Agent Ward asked

her to “refrain from videotaping the conversation.” In response, Johnson exclaimed, “wait, she is one

of you!” As soon as Agent Ward heard this statement, he motioned for the other officers to arrest

Johnson for violating the Arendelle Wiretap Statute, which prohibits videotaping or otherwise

intentionally intercepting another person’s communications without consent of all parties to the

communication. As they were arresting Johnson, Agent Ward asked if she had uploaded the video yet,


which she refused to answer. Agent Ward then confiscated the phone and viewed the already-open

video application. The video had not yet been uploaded, although there was a draft post with the

caption, “Why is Maze so chummy with the police?”

Not long after Johnson’s arrest, the Supreme Court ruled that the Arendelle Wiretap Statute

was unconstitutionally vague and was also too broad a restriction on the First Amendment right to

freedom of speech and of expression. As a result, the Arendelle District Attorney dropped any charges

against Johnson. The current case before this Court is a civil lawsuit filed by Johnson against Agent

Ward under Title 42, Section 1983 of the United States Code, claiming that the search of her phone

without a warrant was a violation of her Fourth Amendment rights. Agent Ward requested this Court

grant summary judgment in his favor, on the grounds that the doctrine of qualified immunity, which

protects police officers from lawsuits for the alleged violation of an individual’s rights, unless the right

was clearly established at the time of the violation.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only where “the movant shows that there is no genuine

dispute as to any material fact.” See Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the

outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A factual dispute is “genuine” if the evidence would permit a reasonable jury to return a verdict

for the nonmoving party. In essence, the inquiry at the summary judgment stage is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided

that one party must prevail as a matter of law.” Id. at 251-52. Specific to this case, however, is the

question of qualified immunity, which depends not only on whether the facts would show a violation of

the Fourth Amendment, but whether that right was so “clearly established” at the time of the alleged

violation that an officer should be held personally liable for the violation.

III. DISCUSSION

A. Qualified Immunity Generally

Qualified immunity is an affirmative defense available to government officials “insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 818 (1982). If a government official

can show that qualified immunity applies in a given case, he cannot be held personally liable and the

case must be dismissed before it ever reaches the trial stage.


Qualified immunity balances the interests of ensuring accountability for public officials who

irresponsibly exercise power and protecting officials from “harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court

has established a two-step analysis—which may be resolved in any order—to determine if an official is

entitled to qualified immunity; this Court must decide: (1) whether the facts alleged by Johnson make

out a violation of her constitutional rights, and (2) whether those rights were “clearly established” at the

time of the alleged violation. Id. at 232. The ultimate determination depends on “the objective legal

reasonableness of the [officer’s] action, assessed in light of the legal rules that were clearly established at

the time it was taken.” Wilson v. Layne, 526 U.S. 603, 614 (1999).

B. The search of Johnson’s phone did not violate her Fourth Amendment rights

1. The search was justified under the incident-to-arrest exception

First, we must specifically define the right allegedly violated to properly determine if said right

was clearly established at the time of the violation. A broad claim that the search violated Fourth

Amendment rights is too indefinite to satisfy the specificity required for a proper analysis under

qualified immunity. Rather, the law requires that the “contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (emphasis added). In the present case, the right in question is more specifically

described as an arrestee’s right to be free from a warrantless search of her cell phone, found on her

person or in the area of her immediate control, incident to a lawful arrest.

The Fourth Amendment provides, in pertinent part, that “the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches . . . shall not be violated . . . .”

U.S. Const. amend. IV. Although warrantless searches are per se unreasonable violations of the Fourth

Amendment, the Supreme Court has meticulously drawn exceptions to this conclusive presumption,

including the incident-to-arrest exception. Jones v. United States, 357 U.S. 493, 499 (1958).

A well-settled, and traditional exception to the per se unreasonable rule is a search incident to

valid arrest. A lawful arrest establishes the authority of an officer to conduct a full search of the

arrestee. U.S. v. Robinson, 414 U.S. 218, 235 (1973). A search incident-to-arrest is not only a valid

exception to the Fourth Amendment warrant requirement, but is also a ‘reasonable’ search under the

Amendment. Id. This exception enables an officer to “search the arrestee’s person and the area ‘within


his immediate control’” for the purposes of ensuring officer safety and preventing the destruction of

evidence. Chimel v. California, 395 U.S. 752, 763 (1969). By virtue of this exception, a warrantless search

incident-to-arrest is both lawful and reasonable. It is notable that neither party here disputes that, in

arresting Johnson, Agent Ward was entitled to confiscate the phone and any other items. The only

question is whether searching the phone after taking it was lawful.

Where both parties concede that the initial seizure of the cell phone was permissible under the

incident-to-arrest exception to the warrant requirement, the remaining inquiry is whether the exception

covers the subsequent search of the open application on Johnson’s cell phone. In Chimel, the Supreme

Court reasoned that the proper extent of a search incident to lawful arrest extends to the arrestee’s

“person,” or area within the arrestee’s immediate control, insomuch as the search is contained to “the

area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” 395

U.S. at 763.

Courts continue to struggle to define the constitutional boundaries for reasonable searches

incident to custodial arrest. The Supreme Court in Chadwick sought to limit the search of a container

found in the arrestee’s immediate control where the search is remote in time and place from the arrest.

See U.S. v. Chadwick, 433 U.S. 1 (1977). The Court reasoned that the potential dangers associated with

custodial arrests justify a prompt search of the person and immediate area, but that justification does

not extend to searches of property remote in time and place from the arrest. Id. at 14-15.

On a similar vein, the Supreme Court in Chimel held the search of an arrestee’s entire home,

incident to his arrest for burglary of a coin shop, to be unreasonable under the Fourth Amendment

insofar as the search exceeded its permissible scope within the purview of the exception. 395 U.S. at

753, 768. The Court found that the search extended far beyond the arrestee’s person and the area from

within which he might have gathered evidence or a weapon. Id. at 768. These cases detail searches that

exceed the permissible scope to search by virtue of the exception. However, the scope of these

searches is distinguishable from the search at hand.

Agent Ward conducted a limited search of the open video application on Johnson’s phone,

found on her person, contemporaneous with his arrest. The prompt search was both brief in time and

content. The searched footlocker in Chadwick was not seized from within the area of arrestee’s

immediate control, and was searched in a different location over an hour after the seizure. 433 U.S. at

14, 15. Though distinguishable in scope, the purpose of the search in this case fits within the Chadwick


and Chimel framework. Agent Ward sought to secure the video evidence, and prevent its publication to

protect Officer Maze and the public from agitated protestors. In light of established Fourth

Amendment principles in conjunction with the permissible scope of an incident-to-arrest search, the

search is justified because it was strictly tied to the circumstances that made the search permissible.

2. Even if the incident-to-arrest exception did not apply, the exigent circumstances exception to the Fourth Amendment does apply

If the incident to arrest exception is too attenuated to justify the search in question, the exigent

circumstances support Agent Ward’s reasonable determination that the search was imperative to ensure

the safety of Officer Maze and the public. In Hayden, the Supreme Court held that the search and

seizure must be contemporaneous with the arrest. “The permissible scope of search must, therefore, at

least be as broad as may reasonably be necessary to prevent the dangers that the suspect . . . may resist

or escape.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (2009).

In the present case, the protestors used the website “ArendelleBLM.org” as a primary means of

sharing ideas and information pertaining to the protest. Therefore, if Johnson were to successfully

upload the footage, the entire protest would be on notice of Officer Maze’s true identity. Despite the

protest’s restrained beginnings, Agent Ward feared the legitimate possibility that violence could ensue

in the wake of the posting. Similar protests in other cities had become increasingly more volatile. See

collection of news articles attached in the record. Agent Ward acted in response to the growing intensity of the

protest, and he reasonably feared that the preceding peacefulness could become violent if the protestors

knew of Maze’s identity as an undercover officer.

In Hayden, the arrestee committed armed robbery of a local business and then was witnessed

entering a private residence nearby. 387 U.S. at 298. When the police arrived moments later, they

entered the home without a warrant to search for the suspect, ultimately leading to his arrest. Id. The

Supreme Court found that the exigent circumstances justified the warrantless search of a private

residence, and that the officers acted reasonably. Id. The Court further stated that the Fourth

Amendment does not require officers “to delay in the course of an investigation if to do so would

gravely endanger their lives or the lives of others.” Id. at 298-99. In the present case, if a warrant

requirement delayed Agent Ward’s search, the publication of the video without official knowledge

might have delayed the ability of the Task Force to respond appropriately. The Hayden Court further

validated the search by attesting that, where speed was crucial to ensure the safety of the officers and

the capture of the suspect, “the exigencies of the situation made that course imperative.” Id. Therefore,


courts are willing to uphold warrantless searches where the circumstances require reasonable action

without delay.

In Tibolt, the First Circuit court reasoned that “exigent circumstances exist where law

enforcement officers confront a ‘compelling necessity for immediate action that w[ould] not brook the

delay of obtaining a warrant.’” U.S. v. Tibolt, 72 F.3d 965, 969 (2011) (quoting U.S. v. Wilson, 36 F.3d

205, 209 (1st Cir. 1994)). The court further explained that such fact-intensive determinations commonly

include: threatened destruction of evidence, and a threat to the lives or safety of the officers or the

public at large. Id. Ultimately, the court concluded that ‘exigent circumstances’ involve an inquiry into

the “objective facts reasonably known to . . . the officers at the time of the search.” Id. This is relevant

to the facts in the present case where there was a legitimate possibility that the safety of the protestors,

bystanders, and the officers in the area could be compromised if the protestors discovered Officer

Maze’s true identity. As a result, the exigent circumstances exception to the Fourth Amendment means

that the search did not violate Johnson’s constitutional rights.

C. Even if the search did violate Johnson’s Fourth Amendment rights, those rights were not clearly established at the time of the search

Even if the search of Johnson’s phone violated her Fourth Amendment rights, this Court

would still grant summary judgment and find that Agent Ward is entitled to qualified immunity because

the right was not clearly established at the time of the violation. Notwithstanding that his actions

violated the Fourth Amendment, Agent Ward may still be immune from suit where, in light of pre-

existing law, the unlawfulness of his actions were not apparent.

A determination of whether a right is “clearly established” depends “upon the level of generality

at which the relevant ‘legal rule’ is to be identified.” Wilson, 526 U.S. at 614 (quoting Anderson, 483 U.S.

at 641). To ensure that officials can reasonably anticipate when their actions may give rise to liability, is

imperative to define the constitutional right with enough specificity so not disrupt the balance between

“the interests in vindication of citizens’ constitutional rights and in public officials’ effective

performance of their duties.” Anderson, 483 U.S. at 639. This does not imply that the search in question

must have previously been held unlawful, but rather, in consideration of pre-existing legal standards,

the unlawfulness of the action must be apparent. Id. at 640.

Neither the Supreme Court, nor the Fourteenth Circuit, have addressed the particular Fourth

Amendment inquiry at issue. Absent binding precedent, there has been no definitively persuasive


determination that a cell phone search incident to lawful arrest violates the arrestee’s Fourth

Amendment rights. The fact that other circuits are split indicates that the right at issue, while robustly

contested amongst courts, was not clearly established at the time of the arrest.

In Wilson, the Supreme Court assessed a scenario in which officers entered a private residence,

with a reporter and photographer in tow, to apprehend and arrest a dangerous fugitive believed to be

inside. 526 U.S. at 607. The residents sued claiming that their Fourth Amendment rights were violated

when the officers allowed members of the media to witness the attempted arrest. Id. at 608. The

Supreme Court ultimately held that the officers were entitled to qualified immunity, despite its initial

determination that their actions violated the Fourth Amendment. Id. at 614.

The Court then turned to balance the objective legal reasonableness of the officers’ actions in

light of clearly established law at the time. In doing so, the Court reasoned that, absent any controlling

authority ruling on the particular issue, and any consensus among persuasive authorities on the matter,

a reasonable officer could have believed his actions to be lawful. Id. at 617. Where the Federal Circuits

disagree on a constitutional question, the Court declined to subject officers to liability for relying on the

losing side. Wilson, 526 U.S. at 618. After all, if judges on the Federal Circuit Court of Appeals cannot

agree on the outcome of a legal issue, how is a police officer to be expected to know with certainty

what the law truly means?

The minority of circuit courts have concluded that, absent exigent circumstances, once the cell

phone comes into the exclusive control of the officer, the subsequent search is not justified. U.S. v.

Wurie, 728 F.3d 1, 5-6 (1st Cir. 2013). These minority courts frame the issue as being one in which cell

phone searches either fall inside the bounds of Chimel or not. Id. at 7. The First Circuit in Wurie sets out

to create a bright-line rule that all warrantless cell phone data searches are categorically unlawful under the

exception of search incident to arrest, and therefore should always require a warrant to validate a

subsequent search. Id. at 12. However, the case involves facts that do not speak to pertinent evidentiary

protection or officer safety. In suggesting this categorical rule, the First Circuit weakens the ability of

officers to make reasonable determinations under the circumstances of the arrest, and may “deter

objectively reasonable law enforcement activity.” Davis v. United States, 131 S.Ct. 2419, 2429 (2011).

I find that the minority of circuit courts unreasonably assume that there is never necessity to

protect arresting officers or evidentiary material, and in doing so risk disrupting meaningful law

enforcement purposes to the contrary. Wurie, 728 F.3d at 13. The right is not clearly established when


courts that purport to agree do so for distinct purposes and under distinguishable facts. Also, the

majority of circuits find in favor of upholding the search. Therefore, if any right were clearly established

by persuasive precedent, it would be expected that Agent Ward would be entitled to believe what the

majority of circuit courts had decided on the issue.

The Fourth Amendment protects people from unreasonable privacy intrusions, but the

contours of the implicated right have yet to be determined by binding authority. The search was within

the permissible scope of a search incident-to-arrest, or at minimum was justified by the exigent

circumstances, and was therefore reasonable under the Fourth Amendment. The lack of consensus

regarding the right supports a finding that it was not clearly established at the time of the arrest.

Therefore, because Agent Ward did not violate Johnson’s clearly established Fourth Amendment right,

he is entitled to qualified immunity and this Court will dismiss the case.

IV. CONCLUSION

For the foregoing reasons, I grant Agent Ward’s motion for summary judgment.

/s/ Joseph Hank Palmer . United States District Court Judge


UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL CIRCUIT

SKYLAR JOHNSON,

Plaintiff/Appellant, vs. No. 16-00408 FILED: ____________ GARRETT WARD,

Defendant/Appellee. Before the Honorable Hastings, Marin, and Montgomery:

The Hon. Spencer Hastings delivered the opinion of the panel:

Skylar Johnson (“Johnson”) here appeals the District Court’s grant of summary judgment for

Agent Garrett Ward (“Agent Ward”), claiming that the District Court improperly granted qualified

immunity to Agent Ward regarding her Fourth Amendment claim. We agree with Johnson, and reverse

the grant of summary judgment.

I. PROCEDURAL POSTURE AND FACTS

The district court order granting Agent Ward’s Motion for Summary Judgment explains the

facts giving rise to this case. Johnson appeals the grant of summary judgment, and reasserts the

arguments she made below. Specifically, she argues that the search of her cell phone was a violation of

her Fourth Amendment right to be free from unreasonable search and seizure, and that those rights

were clearly established at the time of the violation.

The events that triggered the current action occurred during July 2015 in the City of Arendell.

In response to viral videos of what appears to be police racism and unfair treatment, citizens gathered

in Center Park to protest. The Black Lives Matter (“BLM”) movement, which already existed in other

cities across the country, grew quickly in Arendelle as citizens expressed their frustration.

Out of hundreds of protestors, three individuals rose in popularity to serve as the group’s

leaders, including Officer Melinda Maze (“Officer Maze”), an undercover police officer posing as a

retired civil servant. Officer Maze, who was actually employed by the Arendelle State Police, was

instructed to infiltrate the movement, gain the protestors’ trust, and supply the Arendelle Public Safety

Task Force (“Task Force”) with any developing plans or information. The Task Force sought

information about the protestors’ future strategy, particularly whether they would expand to other

public areas of the City of Arendelle. As the Task Force expected, the other leaders expressed the desire


to expand to other highly trafficked public spaces within the city, but Officer Maze persuaded them to

stay in the geographically isolated Center Park and to remain peaceful.

Throughout the protests, protestors regularly filmed Officer Maze and the other leaders. On

occasion, these videos were uploaded to a website called “ArendelleBLM.org” to document the

movement. Nearly a week into the protest, a protestor named Skylar Johnson began to use her cell

phone to videotape Officer Maze speaking to a uniformed Arendelle State Police officer, after

suspecting that Officer Maze was herself an undercover police officer. Agent Ward noticed Johnson

and suspected that she had discovered Officer Maze’s secret occupation. Agent Ward immediately

approached Johnson and asked her whether she had obtained Maze’s consent to record her

conversation. Johnson simply answered in the negative but stated she did not think he needed Maze’s

permission since protestors had been filming the leaders for weeks. Agent Ward asked Johnson to stop

videotaping, to which she responded with a statement regarding her belief that Maze was an undercover

officer.

Without a verbal response, Agent Ward immediately physically seized Johnson’s phone and

asked her whether she had already posted the video online. When Johnson did not give a clear answer,

Agent Ward proceeded to access the contents of Johnson’s phone and found the recently captured

video of Officer Maze within a draft on a video application. Agent Ward claimed that if Johnson had

posted the video on “ArendelleBLM.org” with the insinuation that Officer Maze was working for the

Task Force, Officer Maze’s safety and the Task Force’s relationship with the protestors might have

been at risk. But Agent Ward admitted to the District Court that, prior to the incident, interactions

between the protestors and the Task Force had been completely peaceful and that not one protestor

had been arrested for any reason. After locating the video clip, Agent Ward arrested Johnson on the

grounds that she violated Arendelle’s wiretapping law. After the arrest, the District Attorney dropped

the wiretapping charges once the Supreme Court declared it unconstitutional for other reasons.

Johnson sued Agent Ward in the United States District Court for the Southern District of

Arendelle, claiming that Agent Ward violated her Fourth Amendment rights by searching her cell

phone without a warrant.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had proper federal question jurisdiction over Johnson’s Fourth Amendment

claims brought under 42 U.S.C. § 1983, and jurisdiction was proper under 28 U.S.C. § 1331.


Jurisdiction is therefore proper in this Court from the final decision of the district court under 28 U.S.C.

§ 1291.

The district court granted summary judgment, which we review de novo (anew) on appeal.

Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012). In other words, on appeal we

review the entire case again, without deference to the conclusions of the lower court. Furthermore, when

reviewing qualified immunity, “[w]hether a federal right was clearly established at a particular time is a

question of law, not ‘legal facts,’ and must be resolved de novo on appeal.” Elder v. Holloway, 510 U.S.

510, 511 (1994).

III. DISCUSSION

As discussed in greater detail below, we reverse the decision of the lower court because

Johnson’s Fourth Amendment rights were both violated and clearly established at the time of that

violation, precluding Agent Ward from entitlement to qualified immunity. Qualified immunity cannot

shield government officials from civil liability when a plaintiff’s constitutional right is proven violated

and that right was clearly established at the time of the violation. Put simply, the safeguard of qualified

immunity cannot overcome a State’s intrusion on the plaintiff’s fundamental rights.

To compel the court to deny qualified immunity in this case, Johnson must present facts to

make out a clear violation of her constitutional right to privacy and then show that those rights were

clearly established at the time of the violation. Giragosian v. Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010).

The Fourth Amendment to the Constitution of the United States assures its citizens of their right to

“be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. CONST. amend. IV. It is well established that the fundamental purpose of the Fourth

Amendment is to protect citizens from unwarranted government invasions into their private lives. Jones

v. United States, 357 U.S. 493, 498 (1958). Consistent with this principle, warrantless searches by the

police are considered per se unreasonable and unconstitutional, subject only to certain “jealous and

carefully drawn” exceptions. Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones, 357 U.S. at 99).

The Supreme Court Court established such an exception in Chimel v. California, holding that an

arresting officer could perform a warrantless “search incident to arrest” if faced with certain

circumstances. 395 U.S. 752, 762-63 (1969). The Court offered only two instances of those

circumstances: 1) to remove any weapons from the arrestee’s person that he could use to harm the

officer or effect his own escape or 2) to search for destructible evidence on the arrestee’s person. Id.


It is clear that Agent Ward’s search of Johnson’s phone did not fall within the carefully drawn

Chimel exception to the Fourth Amendment’s prohibition of warrantless searches. Furthermore, cell

phones are inherently private possessions, unlike items immediately associated with a person that may

be searched during an arrest under Chimel. Due to cell phones’ widely recognized heightened

expectation of privacy, Johnson’s Fourth Amendment rights regarding her phone were clearly

established when Agent Ward violated them.

A. The search violated Johnson’s Fourth Amendment rights because the incident-to-arrest exception from Chimel does not apply in this case

The Chimel exception originally gave an arresting officer the right to seize and search an

arrestee’s “person” without a warrant; four years later, the Supreme Court interpreted “person” to

include an individual’s personal effects, as long as the items searched could be construed as weapons or

as evidence in danger of destruction. United States v. Robinson, 414 U.S. 218, 236 (1973) (holding that the

arresting officer was justified in searching a cigarette package found in the arrestee’s pocket because he

could not readily identify what it contained). When articulating the boundaries of the actual search, the

Supreme Court specified that an arresting officer may only search effects within the arrestee’s

“immediate control.” Id. at 223-24. The area within a person’s “immediate control” has since been

consistently defined as the area from which she might easily procure a weapon or access destructible

evidence. United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996) (quoting Chimel, 395 U.S. at 763).

The Chimel exception has unique context when applied to cell phones. United States v. Flores-

Lopez, 670 F.3d 803 (7th Cir. 2012). The Seventh Circuit Court of Appeals in Flores-Lopez recognized

that arresting officers have a legitimate reason to fear cell phones because they can be used as weapons.

Id. at 806 (pointing out that individuals can now purchase stun guns that look like cell phones). The

same court also expressed evidentiary concerns about “remote wiping,” a process by which an arrestee

can delete information on his cell phone with the touch of a button. Id. at 807; see also United States v.

Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that immediate retrieval of call and text message

records during an arrest was necessary to preserve evidence). While the Seventh Circuit did not

specifically endorse or strike down the search of cell phones in particular, its discussion helps illustrate

the concerns that generated the Chimel exception in the first place.

Agent Ward’s initial interaction with Johnson was to physically remove the device from his

hands, exerting full control over it and taking it away from Johnson’s reach. It was after completely

removing the device from Johnson’s possession that Agent Ward began searching the device. Johnson


could not reach the phone held firmly in Agent Ward’s grip, meaning she could not possibly have used

it as a weapon or accessed it to destroy potential evidence. It may be remotely conceivable that Agent

Ward initially seized the phone to prevent Johnson from attacking him with it, but once Agent Ward

took the phone he had no further reason to fear it could be used as a weapon. Similarly, any concern

that Agent Ward had about Johnson’s ability to destroy possible evidence on the phone was eliminated.

This line of reasoning was recognized by the Supreme Court in Arizona v. Gant, which struck

down the search of a vehicle during an arrest because the arrestee could not reach the car at the time.

556 U.S. 332 (2009). Logically, if you cannot reach an item, you cannot tamper with or wield it, and the

Supreme Court declared that police may administer a search incident to arrest “only if the arrestee is

within reaching distance” of his personal effects. Id. at 351. The First Circuit echoed this rationale by

deeming all cell phone searches after arrest unconstitutional, reiterating the fundamental principle that

“the authority to search the person incident to a lawful custodial arrest is based upon the need to

disarm and to discover evidence.” United States v. Wurie, 728 F.3d 1, 12 (2013). Agent Ward had

effectively disarmed Johnson before he searched the cell phone and thus, cannot justify his search with

a concern for safety or for the preservation of evidence.

Many district and state courts have adopted similar views of the search of an arrestee’s cell

phone after it has been removed from her immediate control. See, e.g., United States v. James, 2008 WL

1925032, at *10 n.4 (E.D. Mo. Apr. 29, 2008); United States v. Dixon, 2013 WL 6055396 , at *6 (N.D. Ga.

Nov. 15, 2013) (holding that a search of arrestee’s cell phone after seizure was unconstitutional when it

posed no harm to the officer and alternative methods could have preserved evidence, including turning

the phone off, placing it on “airplane mode,” or removing its battery); United States v. DiMarco, 2013 WL

444764, at *12 (S.D. NY. 2013) (suggesting that disabling and stowing a seized cell phone until

obtaining a warrant would be “far less intrusive” to the arrestee’s privacy). The court in Dixon firmly

states that because there were no exigent circumstances, a warrant was necessary to search the cell

phone contents. Dixon at *6.

The Supreme Court of Florida recently interpreted Gant to mean that once an arrestee is

physically separated from his personal effects, “the dual rationales for the search exception no longer

apply.” Smallwood v. State, 113 So.3d 724, 734 (Fla. 2013). The Supreme Court of Ohio illustrated this

principle by suppressing evidence of phone calls, text messages, and pictures found on an arrestee’s cell

phone by the arresting officer who had confiscated the device. State v. Smith, 920 N.E.2d 949 (Ohio

2009). That court rejected the government’s argument that the search fell under the exception,


declaring that “a search of the cell phone’s contents was not necessary to ensure officer safety, and the

state failed to present any evidence that the call records and phone numbers were subject to imminent

destruction.” Id. at 955.

The Chimel exception to the Fourth Amendment’s ban on warrantless searches is inapplicable

when an officer searches an arrestee’s personal effects beyond what is necessary to remove possible

weapons or to prevent the concealment or destruction of evidence. United States v. Park, 2007 WL

1521573 (N.D. Cal. May 23, 2007). Agent Ward removed the threat of physical danger when he took

Johnson’s phone, and could have turned the cell phone off or removed the battery to prevent the

destruction of evidence. Instead, he searched Johnson’s phone well after the circumstances that would

trigger the Chimel exception were eliminated, and thus, certainly violated Johnson’s Fourth Amendment

rights.

B. The search violated Johnson’s Fourth Amendment rights because the exigent

circumstances exception does not apply in this case

Absent the application of the limited exception from Chimel, the warrantless search of an

individual’s property seized during an arrest is also unconstitutional unless there are exigent

circumstances. United States v. Chadwick, 433 U.S. 1, 14 (1977). The arresting officers in United States v.

Chadwick seized and searched a locked trunk taken from the arrestees’ vehicle, claiming that it was a

lawful search incident to arrest. Consistent with their reasoning in Chimel, the Supreme Court declared

that the warrantless search was not justified if no exigent circumstances exist. Id. at 15. Exigent

circumstances are really only possible when an arrestee’s effects are within her reach at the time of the

search; once out of the arrestee’s exclusive control, secured by the arresting officer, such items pose no

threat to the officer’s safety or to the potential evidence. Id. at 13.

Even accepting Agent Ward’s argument that he feared for Officer Maze’s safety (which is

doubtful because there had been no violent incidents or even arrests at the Arendelle protests, unlike at

other protests around the country), it would not justify an immediate, warrantless search, when there

were less intrusive options available to him and the Task Force. After all, even if the video had already

been posted, it would have taken some time before the hundreds of protestors could have all viewed

the video and turned violent—it would not have been an instant danger. Therefore, Agent Ward and

the other Task Force officers could have removed Officer Maze from the environment before any

danger could have been posed. Additionally, Agent Ward could have checked the ArendelleBLM.org


website on his own cell phone or other device to see if the video had been publicly posted; there was

no reason he needed to check for that information on Johnson’s cell phone rather than on another device.

Therefore, the only arguable justification for Agent Ward searching Johnson’s phone would be to

attempt to stop the upload if it were already in progress, and he could have just as easily accomplished

that objective by powering down the phone or removing its battery.

Some circuits have upheld the warrantless search of a cell phone recovered from the arrestee’s

immediate control. See, e.g., United States v. Curtis, 635 F.3d 704, 712-13 (5th Cir. 2011) (citing United

States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007)). In Finley, arresting officers seized a suspect’s cell

phone during his arrest and later searched it for incriminating information. Finley, at 254-255. The Fifth

Circuit upheld the search, rationalizing the phone as “immediately associated” with the arrestee’s

person at the time of the search. Id. at 260 n.7. However, the rationale in Finley is not persuasive here,

because it is clear that no exigent circumstances were present when Agent Ward conducted his search

of Johnson’s phone. Assuming that Agent Ward made a lawful arrest, the bright line rule set forth in

Robinson allowed him to detain Johnson, search her, and even seize her cell phone as a personal effect

within her immediate control. Robinson, 414 U.S. at 235. When Agent Ward entered the phone and

searched through personal information, he stepped beyond the lines of an acceptable search and

violated Johnson’s Fourth Amendment right to privacy.

C. Johnson’s right to be free from unreasonable search and seizure was clearly established at the time of the violation

It is a well-established constitutional principle that the Fourth Amendment’s protection

depends not on character of the property invaded by the government, but whether the invaded area had

a reasonable expectation of freedom from government intrusion. Mancusi v. DeForte, 392 U.S. 364, 368

(1968). As previously discussed in this opinion, warrantless searches of a person and the items

immediately associated with her (like a purse or a wallet) are often justified when she is under arrest

because there is an inferred reduction in an arrestee’s expectation of privacy. However, searches of a

person’s possessions are not automatically justified under the same standard. Chadwick, 433 U.S. at 16 n.

10. A person’s privacy interest in property separate from her person is not eliminated or reduced simply

because she is being arrested. Id. Courts have increasingly recognized cell phones as a category of

possessions under Chadwick that are fundamentally different from “items associated with the person,”

and therefore demand a higher expectation of privacy under the Fourth Amendment.


Due to advances in technology, cell phones now have vast storage capacities, capable of storing

nearly limitless amounts of personal information that can encompass the social, emotional, medical,

occupational, and financial details of a person’s life. In addition to the myriad of personal documents

that could betray an individual’s most private information, cell phones are often equipped with web

browsers and social media applications, which may display a browsing history that divulges the hobbies,

interests, and activities of its owner. Put simply, a person’s cell phone does not just contain his personal

information and private thoughts, but the intimate details of his past, present, and future.

The First Circuit was the first to recognize cell phones as fundamentally distinct from items

immediately associated with the person, asserting that a person’s phone holds the type of information

that previous generations would have stored in their homes, which “would have been off-limits to

officers performing a search incident to arrest.” Wurie, 728 F.3d at 8. The court acknowledges the fact

that some cell phones now function as computers and can perform highly complex tasks such as

remote home monitoring and social video conferencing. Id. at 8-9. By referencing such capability, the

First Circuit recognizes that the search of a person’s cell phone could literally become the search of her

home, which is never eligible for a warrantless search. Id.

Some circuits have avoided recognizing cell phones as separate, private possessions under

Chadwick by insisting that they are simply closed “containers,” which have long been searchable by

arresting officers. See, e.g., People v. Nottoli, 199 Cal.Rptr.3d 884, 898 (Cal. Ct. App. 2011) (citing New

York v. Belton, 453 U.S. 454 (1981) (defining “container” as any object capable of holding another

object)). Circuits that define cell phones as “containers” reason that the Chimel exception justifies the

warrantless search of the data within an arrestee’s phone just like it justifies the warrantless search of

the contents within an arrestee’s wallet. Silvan W. v. Briggs, 309 Fed.Appx. 216, 225 (10th Cir. 2009).

However, it must be clear to anyone who uses a cell phone that the comparison between such a device

and a wallet is unreasonable; the two items are inherently different with regard to both storage capacity

and quality of saved information.

Many district and state courts agree with this logic and have held that cell phones could not

possibly be subject to a search-incident-to-arrest as “part of the person.” See Park, at *8; see also Smith,

124 Ohio St.3d 163. The Park court firmly draws the line between cell phones and items associated

with the person, stating that “unlike pagers or address books…individuals can store highly personal

information on their cell phones, and can record their most private thoughts and conversations.” Id.

The court goes on to predict massive infringements of privacy if cell phones are considered part of the


person, characterizing the search of an electronic storage device as “substantially more intrusive” than

the search of a tangible object. Id.

In contrast, even the most basic-model cell phones of today can store large quantities of

messages, calls, and digital files that are unaffected by additional data. Id. Because data on cell phones is

not in danger of sudden, uncontrollable deletion, arresting officers have no authority under the Chimel

exception to search a cell phone to preserve evidence. Id; United States v. McGhee, 2009 WL 2424104, at

*1 (D. Neb. 2009) (holding that officers had no justification for conducting a warrantless search of an

arrestee’s cell phone because it did not present a risk of harm to destructible evidence).

A few courts have attempted to compromise on the determination of a cell phone’s expectation

of privacy by ruling that an arresting officer may execute only a partial search of the phone. See United

States v. Gomez, 807 F.Supp.2d 1134, 1148 (S.D. Fla. 2011) (holding that the search of an arrestee’s cell

phone was appropriate because it was limited to the call history from the previous 24-48 hours).

Although it has not produced a categorical rule for the search of cell phones during an arrest, the

Seventh Circuit upheld the actions of arresting officers who limited their search of an arrestee’s phone

to his call history. Flores-Lopez, 670 F.3d at 805. Claiming that the invasion of the arrestee’s privacy was

limited to the discovery of the cell phone’s number, the court analogized the search to a quick look

through an arrestee’s address book, which is valid under the Chimel exception. Id. at 807-08 (citing

United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993)).

Unfortunately, leafing quickly through an address book is almost impossible to simulate on a

cell phone. A cell phone’s navigation system accommodates the use of multiple programs

simultaneously, allowing a fast and easy search of countless pages of personal information. See Wurie,

728 F.3d at 8. The Seventh Circuit makes it sound simple for a user to avoid certain personal

information on a cell phone, waxing: “If forbidden to peruse love letters recognized as such found

wedged between the pages of the address book, they should be forbidden to read love letters in the files

of a cell phone.” Flores-Lopez, 670 F.3d at 807. Unfortunately, a cell phone’s inherent, open-book

accessibility make it impossible to avoid seeing certain personal information while searching through it;

while looking for a simple phone number, an arresting officer may stumble across text messages, media

files, and e-mails that he can never un-see.

Applying a “limited search” approach to the current facts fails because Agent Ward did not just

attempt to find Johnson’s cell phone number. Additionally, as a matter of policy, a limited search rule


seems to encourage officers to conduct case-by-case analyses as to whether an arrestee’s phone can be

properly searched, an impractical imposition on field officers who are required to make quick judgment

calls. Wurie, 728 F.3d at 5. This type of ad hoc application of the Fourth Amendment is clearly

insufficient in light of the clear, bright-line rule that categorically forbids cell phone searches due to a

heightened expectation of privacy. Id.

Considering the Fourth Amendment’s general prohibition against government intrusion and the

common knowledge that cell phones contain an abundance of personal information, Johnson’s right to

privacy was clearly established when Agent Ward searched his phone.

IV. CONCLUSION

For the foregoing reasons, we reverse the district court’s grant of Paulson Spectre’s motion for

summary judgment and remand for further proceedings consistent with the this opinion. We also

reverse the district court’s denial of Ross’s JMOL and vacate the judgment entered against Ross on

Paulson Spectre’s CFAA claim.

Filed: _____________________


THE SUPREME COURT OF THE UNITED STATES

OCTOBER, 2016 TERM GARRETT WARD,

Petitioner, vs. No. 16-00408

FILED: ____________ SKYLAR JOHNSON,

Respondent.

ORDER GRANTING CERTIORARI Garret Ward’s petition for writ of certiorari is hereby granted. The parties are instructed to address the following questions:

1. Does the search of a cell phone by a police officer during or immediately before or after a lawful arrest, for the stated purpose of protecting an undercover officer’s identity (which might be revealed if the cell phone were allowed to upload or send information suggesting the officer’s true identity), violate the Fourth Amendment right to be free from unreasonable search and seizure?

2. If the search of a cell phone by a police officer during or immediately before or after a lawful

arrest, for the stated purpose of protecting an undercover officer’s identity (which might be revealed if the cell phone were allowed to upload or send information suggesting the officer’s true identity), does violate the Fourth Amendment right to be free from unreasonable search and seizure, is that right clearly established for the purpose of denying qualified immunity to the searching officer?


APPENDIX A 42 U.S.C. § 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Arendelle Wiretapping Law A person commits wiretapping when he knowingly and intentionally intercepts another person’s electronic or oral communications, unless he does so with the consent of all parties to such communication. To “intercept” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any electronic or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communications. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


APPENDIX B News Coverage of Similar Protests

Black Lives Matter Leader Calls for End to Violence By John Eligon | Jul. 17, 2016 DeRay Mckesson, one of the best known voices for the Black Lives Matter movement, and who was arrested at a demonstration in Baton Rouge, La., earlier this month, called for peace in a phone interview after news of the shooting broke on Sunday. “I’m waiting for more information like everybody else,” he said. “I have more questions than answers” “The movement began as a call to end violence. That call remains.” Mr. Mckesson and several others traveled to Baton Rouge to protest the death of Alton Sterling, who was fatally shot by the police on July 5. The authorities arrested more than 100 people in connection with a protest outside the city’s Police Headquarters, charging most of them with obstructing the road. Eight firearms were confiscated and one officer lost several teeth after he was struck by a projectile, the police said. “My prayers are with the victims of all violence,” Mr. Mckesson said Sunday. http://www.nytimes.com/live/police-shooting-in-baton-rouge/black-lives-matter-leader-calls-for-peace/

Black Lives Matter Protest Turns Violent In St. Paul July 11, 2016 | 4:29 PM ET ROBERT SIEGEL, HOST: The Twin Cities are still reeling in the aftermath of the death of Philando Castile. He is the 32-year-old black man, the school cafeteria supervisor who was killed by a police officer after a traffic stop last week. Over the weekend, protesters shut down a main highway in St. Paul ending in violence and the arrest of 50 protesters. Tonight the city attorney announced rioting charges against 46 of them. NPR's Adrian Florido reports from St. Paul. (SOUNDBITE OF PROTESTERS YELLING) ADRIAN FLORIDO, BYLINE: This was the scene as hundreds of protesters angry over Castile's killing shut down Highway I-94 late Saturday night. (SOUNDBITE OF PROTESTERS YELLING)

http://www.nytimes.com/live/police-shooting-in-baton-rouge/black-lives-matter-leader-calls-for-peace/

http://www.nytimes.com/live/police-shooting-in-baton-rouge/black-lives-matter-leader-calls-for-peace/


FLORIDO: Some in the crowd threw rocks and fireworks at police. Officers responded with smoke canisters and pepper spray. The St. Paul Police Department said 21 of its officers were hurt, including one who had a brick dropped on him from an overpass. Speaking to Minnesota Public Radio, Mayor Chris Coleman called what happened a riot. (SOUNDBITE OF ARCHIVED RECORDING) CHRIS COLEMAN: Up to the point where people were peaceful - up to the point where they were sitting on the freeway, they may have been unlawfully assembling, but they weren't rioting. The minute that brick was thrown, the minute the fireworks were thrown towards the police officer, that's riot. FLORIDO: On the same station, local Black Lives Matter leader Lena Gardner denounced the violence, which she blames on outsiders and anarchists. LENA GARDNER: Black Lives Matter in Minneapolis has been and always will be committed to nonviolent protest. We've taken that position from the get-go and we have never wavered from it. And we don't know. FLORIDO: The group has asked for donations to cover the legal fees of arrested protesters. The violence both here and in other cities, including Dallas, where five police officers were killed during a march last week, has complicated the Black Lives Matter movement's effort to gain momentum after the deaths of Castile and Alton Sterling in Baton Rouge. UNIDENTIFIED CROWD: (Chanting) No justice. No peace. UNIDENTIFIED WOMAN: What? UNIDENTIFIED CROWD: (Chanting) Prosecute the police. UNIDENTIFIED WOMAN: Come on. FLORIDO: Earlier on Saturday, protesters led a peaceful march through downtown Minneapolis, and for a fifth straight day, crowds gathered outside the Minnesota governor's mansion. Dozens remain camped outside there. Cornell Brooks is the NAACP's national leader, and he came here to speak at a local church over the weekend. (SOUNDBITE OF ARCHIVED RECORDING) CORNELL BROOKS: We will stand up and stand against police misconduct, police brutality, and we will bring this 21st-century lynching until an end. FLORIDO: Also over the weekend, the lawyer for Jeronimo Yanez, the officer who killed Philando Castile, spoke out. He told the Minneapolis Star Tribune that Castile's killing had nothing to do with race and everything to do with the presence of Castile's gun. Philando Castile had a license to carry a gun. Castile's family today hired television judge and attorney Glenda Hatchett. Officer Yanez remains on paid leave while officials investigate the shooting and decide whether to charge him or turn the case over to a grand jury. Adrian Florido, NPR News, St. Paul. http://www.npr.org/2016/07/11/485593473/black-lives-matter-protest-turns-violent-in-st-paul

http://www.npr.org/2016/07/11/485593473/black-lives-matter-protest-turns-violent-in-st-paul


NYPD used undercover police to snoop on Black Lives Matter protests - court documents Published time: 29 Sep, 2016 22:52 Newly obtained documents indicate the New York Police Department may have committed constitutional violations by deploying undercover officers to monitor peaceful Black Lives Matter protests, following the death of Eric Garner in 2014. It also collected multimedia recordings from Grand Central Station demonstrations according to court documents filed by the NYPD in response to a lawsuit, The Guardian reported. The disclosures were made after a group of New York attorneys filed a suit against the NYPD after they refused requests to release records under the freedom of information law. Writing in response to the FOI request, the NYPD wrote in a court filing last month that it found several records regarding its undercover operations of Black Lives Matter protests at Grand Central Station following Garner’s death. The department wrote it had discovered multimedia records as well as communications that occurred between a plainclothes cop and their handlers in which they discussed the protests while they happened, The Guardian reported. While the third requested file “consists of a single record, which is a communication from an NYPD officer working in an undercover capacity and his base,” also connected to the protests. Mass protests erupted at Grand Central Station in December 2014 after a grand jury decided not to indict Daniel Pantaleo, a police officer involved in the death of Eric Garner in July of that year. The choking to death of Garner was caught on video and ruled a homicide by the city medical examiner, but the grand jury decided not to indict Pantaleo on any charges. Keegan Stephen, one of the activists involved in the FOI suit, said that the NYPD first claimed they could not locate any records and later argued that all of its records were exempt and refused to disclose them. The group, made up of activists and attorneys, then filed a suit and the latest revelations were made in response to that. The same records request led to the release of nearly 300 documents in 2015 by the Metropolitan Transit Authority and the Metro-North Railroad which revealed that undercover police have regularly spied on BLM protestors as reported by The Intercept. The attorneys involved say this insight into NYPD’s activities could reveal potential constitutional violations, considering the MTA and Metro-North police observations of the protests described the gatherings as “peaceful” and “orderly.” “The fear and disarming effect caused by undercovers being assigned to what were and continue to be extraordinarily peaceful protests is disturbing,” MJ Williams, one of the attorneys involved in the records request told The Guardian.


“To the extent that it would influence individuals not to participate and get individuals to censor what they say because of a fear of undercovers – that’s a basis for a first amendment violation.” Williams also added there was a potential fourth amendment violation for unlawful seizure if police held files on protesters that could be used against them because of their political activities. However she admitted that law enforcement agencies “have all sorts of justifications for data collection for public safety that the courts have allowed.” The police could also be in violation of the Handschu agreement if they are found to be collecting images of protestors for the sole purpose of monitoring their political activity. Oral arguments in the case are scheduled to be heard on December 7th. https://www.rt.com/usa/361128-nypd-undercover-black-lives-matter/

Why Black Lives Matter protests were nonviolent, but not calm Two large Black Lives Matter protests in Chicago and Minneapolis Tuesday night resulted in no violence. But that wasn't the whole story. By Nissa Rhee, Contributor | Mark Sappenfield, Staff writer Nov. 25, 2015 CHICAGO — Charles Preston wants to make one thing perfectly clear. The protests in Chicago Tuesday night were nonviolent, but they were most certainly not calm. "We were loud and angry, but we had a right to be," says the spokesman for Black Youth Project 100, which helped coordinate the protests. Overnight Tuesday in Chicago and Minneapolis, there was widespread relief. Worries that protests against police might turn violent had brought a member of Congress out onto the pavement in Minneapolis and prompted a pleading press conference from Chicago Mayor Rahm Emanuel Tuesday. But Tuesday night's message was not "all is well," say Mr. Preston and others involved in the protests. To them, the national script is still backward. The story of Tuesday night, they say, was not that protesters managed to remain peaceful, but that they managed not to retaliate against continued police provocation. For instance, the arrest of aspiring Chicago poet Malcolm London – who once appeared at a TED Talk with Bill Gates and John Legend – was on "trumped up charges," says Preston. "Police saw this as an opportunity to jail one of our charismatic leaders." An initial police statement said Mr. London hit a police officer, and he was arrested on one charge of felony battery. But on Wednesday, police dropped the charge.

https://www.rt.com/usa/361128-nypd-undercover-black-lives-matter/


The incident speaks of the fraught relationship that remains between the black community and police even as police take historic steps steps to rebuild trust. For the most part, members of the black community say they still don't feel it. Even on a Tuesday night when everything seemed to go about as well as could have been hoped, the lingering feelings among black activists in Chicago was bitterness and frustration. The lesson, experts say, is that police reform will not only take time, but heart. The goal is not so much a change in arrest rates or body cam usage, but a deeper change in how each community views the other. For police, Wednesday's release of London will be a small sign of that deeper change. For activists, his arrest will be a sign that that change has not come fast enough. Tensions were undoubtedly high Tuesday in both in Chicago and Minneapolis. In Chicago, police released a video that showed a white police officer fatally shooting a black teen 16 times because he refused to drop a knife; many of the shots were fired after the teen had already fallen to the ground. The officer was charged with first-degree murder Tuesday, but activists note that it had taken more than a year and a lawsuit to get the video released – and charges were not brought until hours before the video was made public. In Minneapolis, five Black Lives Matter protesters were shot Monday night – though not seriously wounded – at one of a series of nightly rallies outside the Fourth Precinct for Jamar Clark, a black man fatally shot by police on Nov. 15. Protesters said they had been harassed by both online death threats and a group of masked men who filmed the protesters and made racist remarks. Three men – all white – were arrested Tuesday. It is not clear whether they are connected to any of the alleged threats. The Minneapolis protests Tuesday night included a march on City Hall by nearly 1,000 people, as well as a visit to the sidewalk protest site by Rep. Keith Ellison (D) of Minnesota, where "hundreds of demonstrators ... quietly milled around, sharing coffee, pizza and doughnuts and stacking up firewood," according to the Associated Press. But there was an edge to the evening, as well. Some of the protesters said police had showed up in full riot gear the night before and had been rough with the crowd, according to the AP. It is a complaint echoed in Chicago and beyond. "The black community is always told to be peaceful, as if we are inherently violent," says Preston. "The cops ... come and greet these peaceful protesters with militarized gear. The cops come prepared to arrest people who are protesting. The cops have their hands on their guns and they are agitating the situation.... I think in a situation like that we show great restraint." The tensions between the two communities were highlighted further this week when a police officer in Oregon was taken off street duty after calling Black Lives Matter protesters fools. Ahead of a planned protest in Portland, Ore., he tweeted: “Black Lives Matter is planning to protest at Lloyd Center on black Friday. Oh joy, stuck late again at work to babysit these fools.” Chicago Police Supt. Garry McCarthy acknowledged at a press conference Tuesday that "we have some work to do to obtain the trust," but he added: "At the end of the day, you've got respect the men and women who are out there every day doing this job without incident."


Many experts agree that, by and large, the police community wants to serve the black community better. “I’ve been doing this work for 30 years, and I’ve never seen such a spirit of openness and trying to figure out what’s appropriate for policing as I’ve seen here,” says Tom Tyler, a Yale University professor of law and psychology, told the Monitor at a police summit in Chicago last month. The challenge is conveying that message across what Mayor Emanuel called a "barrier of misunderstanding." Just across the Mississippi River from Minneapolis's Fourth Precinct, an answer might be taking shape. The police chief of the Columbia Heights, Minn., has brought crime to a 25-year low through community policing, The Huffington Post reports. Officers are required to do 10 hours of community policing a year, serving dinner at local church functions or holding "Coffee with a Cop" sessions. Community policing "wasn't always popular with [officers], it took months or years for some people to see the value," Chief Scott Nadeau told the Post. But "I think that having these positive interactions ... helps them to maybe refocus somewhat on the fact that the majority of the people in our community are great citizens and those relationships are important to both sides." http://www.csmonitor.com/USA/Justice/2015/1125/Why-Black-Lives-Matter-protests-were-nonviolent-but-not-calm

Black Lives Matter protesters hold peaceful rally Downtown July 21, 2016 | 6:32 PM Several hundred Black Lives Matter protesters gathered this evening at the corner of Wood Street and Liberty Avenue, blocking traffic for about an hour. Protesters focused on the death of Bruce Kelley Jr., who was shot dead by Port Authority police in Wilkinsburg in January. People held signs and chanted against police brutality in the street as officers from the city and Port Authority stood by. The protest remained peaceful, and no one was arrested or injured. http://www.post-gazette.com/local/city/2016/07/21/Black-Lives-Matter-protesters-hold-peaceful-rally-Downtown/stories/201607210183

Baltimore police arrest 35, 6 officers injured in protest By Yvonne Wenger and Colin Campbell April 27, 2015

http://www.csmonitor.com/USA/Justice/2015/1125/Why-Black-Lives-Matter-protests-were-nonviolent-but-not-calm

http://www.csmonitor.com/USA/Justice/2015/1125/Why-Black-Lives-Matter-protests-were-nonviolent-but-not-calm

http://www.post-gazette.com/local/city/2016/07/21/Black-Lives-Matter-protesters-hold-peaceful-rally-Downtown/stories/201607210183

http://www.post-gazette.com/local/city/2016/07/21/Black-Lives-Matter-protesters-hold-peaceful-rally-Downtown/stories/201607210183


Mayor Stephanie Rawlings-Blake and a coalition of two dozen interdenominational leaders issued a "call for peace" Sunday after 35 people were arrested and six police officers were injured in protests over the death of Freddie Gray. The Police Department in the afternoon released a list of the names of the 31 adults arrested, omitting those of the four juveniles. Despite police Commissioner Anthony W. Batts' insistence that a minority of out-of-town instigators caused the violence, online court records Sunday showed that only three of those arrested during Saturday's protests were from outside Maryland. "While the vast majority of arrests reflect local residency, the total number of arrests does not account for every incident of criminal activity," police said. "The Baltimore Police Department believes that outside agitators continue to be the instigators behind acts of violence and destruction." Rawings-Blake said "outside forces" took advantage of the community's pain to incite violence. The out-of-towners' presence was "reflected more than just in the arrest numbers but what we saw on the streets," the mayor said. "Many people who weren't from our community were, in essence, trying to hijack the very raw emotions of some of those who live in Baltimore and were expressing anger over the death of Mr. Gray," she said. "People from the outside were inciting some of the 'shut this city down' sort of messaging, and then just left." Multiple storefronts were vandalized and several police vehicles were damaged, police said. Other property damage was reported, but police did not immediately provide further information. Police said city officers worked in collaboration with "local and state law enforcement partners" to restore calm. Extra officers will be deployed throughout the city this weekend, police said. Meanwhile, a coalition of about 25 local religious leaders continued to call for peace. "From the days of our nation's earliest civil rights sit-ins, Baltimore has a long tradition of peaceful and respectful demonstrations," the coalition said in a statement released by Rawlings-Blake's office. "Together, as leaders of different faiths in our city, we join Mayor Stephanie Rawlings-Blake and call for our citizens to honor and continue that history as we pray for the family of Freddie Gray." Gray died April 19, a week after he sustained a spinal cord injury while in police custody. Among those calling for peace were the Rev. Frank M. Reid III of Bethel AME Church in Upton/Druid Heights, the Rev. S. Todd Yeary of Douglas Memorial Community Church and Auxiliary Bishop Denis J. Madden of the Archdiocese of Baltimore. Other spiritual leaders included Resident Bishop Marcus Matthews of the Baltimore-Washington Conference of United Methodist Church, the Rev. Jamal H. Bryant of the Empowerment Temple, Rabbi Andrew Busch of the Baltimore Hebrew Congregation and Minister Carlos Muhammad of the Muhammad Mosque Number Six.


http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-protest-arrests-20150426-story.html



2016-2017 moot court practice packet - ncfca information contained on the following pages outline...

Documents