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Judge Jed Rakoff of the Southern District of New York isn’t one to suffer the federal government’s many fools. Five years ago, Rakoff resigned from the DOJ’s rigged forensics committee — one supposedly formed to tell the DOJ what it was doing wrong when analyzing and testifying about forensic evidence. Rakoff received a personal call from the DOJ’s Deputy Attorney General who told him the Commission would not be examining the handling of pre-trial evidence. In other words, the Commission could not make any recommendations about disclosures about means and methodology used by forensic investigators to defendants prior to trial. Rakoff resigned, calling out the government for its “trial by ambush” practices.
More recently, Judge Rakoff demanded to know why every single one of the DEA’s 179 reverse sting operations targeted minorities. The stings involve the DEA telling targets a shipment of drugs is coming in and how to intercept it. There are no real drugs arriving and the DEA swoops in to arrest people for attempting to make off with nonexistent drugs. It then uses the imaginary amount of drugs to recommend prison sentences. Somehow, the fake amount always clears the bar needed to demand a mandatory minimum 15-year sentence.
Judge Rakoff is back and he’s still angry. He’s been handling litigation over ICE’s nasty practice of camping out at courthouses to arrest people for immigration violations. ICE figures this is a great place to find people because they’re compelled to show up. Immigration agents aren’t just picking up accused criminals. They’re also hauling off witnesses and crime victims. (h/t Courthouse News Service)
The lawsuit was filed by the New York State Attorney General, who sought an injunction blocking ICE agents from trolling state courthouses for undocumented immigrants. ICE has been blocked, and Judge Rakoff wastes no time excoriating the agency for its actions. From the opening of the decision [PDF]:
Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers.
The ruling points out ICE never used to be this way. But Trump’s Executive Order, released shortly after he was elected, gave ICE the idea its earlier reluctance to look completely evil was going to limit its ability to aggressively pursue the foreign baddies the US president clearly wanted removed. Arrests at New York state courthouses leapt from 28 in 2016 to 161 in 2017. In 2019, the total was 173 arrests.
The judge says ICE has been completely disruptive to the judicial process.
Plaintiffs have also submitted substantial evidence indicating that these arrests, in addition to their impact on litigants, undermined the orderly functioning of New York courts themselves. Because ICE arrested aliens as they were entering court for scheduled proceedings, the agency forced courts to adjourn proceedings at the last minute, wasting scarce judicial time and resources. Similar results occurred when ICE failed to produce a criminal defendant for a scheduled conference. Even worse were those occasions when ICE conducted an arrest in the courthouse itself, resulting in “complete chaos,” as well as physical damage, Finally, ICE further undermined the interests of justice by arresting and deporting criminal defendants who were appearing in court in connection with their own cases, thereby ensuring that these defendants never faced justice for their crimes.
After discussing the Executive Order and previous laws governing ICE enforcement activities, Judge Rakoff says there’s nothing in any of it that suggests it’s lawful to interrupt court proceedings to perform arrests for civil violations, much less prevent crime victims and witnesses from participating in the justice system.
[F]or all the reasons previously explained, courthouse civil arrests are not lawful, because they contravene the common-law privilege, which the INA [Immigration and Nationality Act] is best read to incorporate, that protects courts and litigants against these intimidating and disrupting intrusions. Regardless of what ICE may have believed, then, the Executive Order in fact did not compel the agency to undertake its vast broadening of the scope of courthouse arrests. To the contrary, by its use of the term “lawful,” it effectively forbade such unlawful intrusions.
These arrests are illegal, Judge Rakoff says. And ICE has offered nothing in defense of its increased presence in state courtrooms that says otherwise.
[ICE] has effectively offered no rationale other than its misguided reliance on the Executive Order for its consequential decision to expand its agents’ authority to conduct courthouse arrests. Although the Directive itself makes conclusory references to the “reduce[d] safety risks” of conducting arrests in a place where people are screened for firearms, and the “unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails,” the record contains no explanation of how the agency balanced any such benefits against the harms of the policy discussed above.
ICE is now frozen — blocked from entering New York courtrooms to grab potential detainees. Rakoff says the policy — as enacted by ICE since 2017 — is illegal. It not only prevents ICE from entering courtrooms to effect arrests but also prevents ICE from detaining people traveling to state courthouses as parties or witnesses to civil lawsuits. ICE will probably appeal this because it seems to believe inflicting misery is part of its directive, but, for now, it will have to limit itself to raiding dozens of other places to grab people suspected of civil violations.
Filed Under: courthouses, deportation, ice, immigration, jed rakoff, new york, undocumented
Earlier this year, the FBI was catching heat for some undersupervised and overly-broad surveillance it deployed around the San Mateo courthouse in California. Hoping to catch conversations related to suspected bid-rigging during real estate auctions, the FBI scattered hidden microphones around the courthouse steps where the auctions took place.
The defendants’ legal representation raised hell, claiming the surreptitious recordings violated their clients’ rights. After all, the Supreme Court had declared in 1967 that closing a phone booth door was not dissimilar to holding a conversation in hushed tones, bringing a limited expectation of privacy to public places.
The FBI couldn’t have felt all that confident about its secret recordings as it vowed not to enter any of the conversations it captured into evidence. That wasn’t enough for the judge, however, who said he still needed to determine whether other evidence had been tainted by this questionable surveillance.
Not only was there a question about the legality under the Fourth Amendment, but there were unanswered questions about how many completely irrelevant conversations the FBI’s bugs might have picked up — like privileged discussions between lawyers and clients, both of whom are often at courthouses simultaneously.
Apparently, the FBI thought it was going to get away with this, most likely by declaring anything that happens in public to be completely stripped of privacy expectations. The surreptitious recordings in San Mateo didn’t go nearly as smoothly as planned and now evidence has been produced showing the FBI targeted more than one courthouse during its bid-rigging investigation. (via Nate Cardozo)
At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse’s exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse, according to a letter sent by US Justice Department attorney Kate Patchen to Marr’s attorneys on March 15. The surveillance was ongoing from March 2010 to January 2011.
And:
In Martinez, the FBI planted microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site.
Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?
Tough to say. Multiple prosecutions of suspected bid-riggers are ongoing, but the investigative groundwork is failing to pass inspection. Once again, prosecutors are promising not to use the questionable recordings in court, but they’re far less likely to drop any evidence springing from those captured conversations.
In addition, defendants’ lawyers in the San Mateo County case are going so far as to claim the FBI committed felonies by recording conversations, as California is a two-party consent state. They might have to settle for some suppressed evidence though, as the state law has a fairly broad “public area” exception, which would cover courthouse steps and bus stops. But that interpretation of the state’s wiretap law exceptions may be subject to the government’s interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.
The FBI — through its actions — is repeatedly demonstrating it cares little for the rules that govern its investigations and intelligence gathering. It only cares when it gets caught. This is its culture, something that traces back — with only minimal interruption — to its inception.
Filed Under: california, courthouses, expectation of privacy, fbi, recordings, surveillance, warrants
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