Apparently you do not have a First Amendment right to photograph the police in Pennsylvania. Unless you do a little jig.

February 22, 2016

This could be a significant blow to the First Amendment, as apparently videotaping the police is not protected speech in Pennsylvania. Unless, of course, you also decide to yell at them or do a jig at the same time.

I wish I were joking, but I’m not…

Two cases before the United States District Court, Eastern District of Pennsylvania, were recently consolidated into one for the purpose of determiningย “whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.”

This isย the trial court’s entire opinion, if you want to read the decision in its entirety.

The underlying facts are simple:

In the first case,ย Temple University student Richard Fields wasย standing on the sidewalk. There were 20 police officers standing outside a house party. Fields thought it was worth photographing for whatever reason. The police officer asked Fieldsย to leave and stop taking pictures. Fieldsย refusedย and continuedย to film. The police officer then tookย his phone and arrestedย him. Fieldsย wasn’t taping the matter to protest the police or anything like that. He simply felt like recording it, maybe to put on Facebook, Instragram, or Philly Law Blog (holla!). The student did not claim to be protesting the police (or the house party for that matter), but merely recording the event.

In the second case,ย Amanda Geraci was at a protest.ย During the protest, the Philadelphia police arrested one of the protestors. Geraci moved closer to get a better view and hoped to videotape the incident. Geraci claims Officer Brown “attacked her” by physically restraining her against a pillar and preventing her from videotaping the arrest. Geraciย claims that “I was just legal observing.”

Both sued the Philadelphia Policeย Department under 42 U.S.C. ยง1983 for First Amendment Retaliation.

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Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional

December 26, 2015

Generally, Pennsylvania attorneys’ actions areย governed by the Pennsylvania Rules of Professional Conduct. However, if an attorney abuses process by filing and maintaining a lawsuit that was either grossly negligent or without probable cause, the attorney can also be held liable in a civil court under what’s known as the Dragonetti Act,ย 42 Pa. C.S.A. ยง 8351.

The standard to hold an attorney liable is high. Not only does one have to file and maintain a lawsuit that was either grossly negligent or without probable cause, but it also has to terminate favorably on the merits. This means you can go through years of frivolous litigation with little to no recourse. More often than not,ย litigants get burned out from incurring legal fees, and simply settle the case rather than take a chance on recovering their fees in a Dragonetti Action.

Nevertheless, and despite it’s high burdens,ย the Dragonetti Act is particularly important because Pennsylvania does not have an anti-SLAPP statute.

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In case it’s not perfectly clearโ€ฆ

July 1, 2014
GetAWarrantiPhone

Get a Warrant โ€” for iPhone

I made this on my iPhone yesterday, and it currently serves as my lock screen.

Feel free to download and use it appropriately.

Tell your friends and share as much as you’d like. Get the word out there that police may not search your phone without your consent or a warrant, thanks to Riley v. California.

(Wikipedia here, SCOTUS opinion here, OYEZ project link here).

While you’re at it, turn off location services.

Edit: I had a colleague point out to me that the text is obscured by the unlock dots on some Android phones. An Android version is below the fold.

2nd Edit: Ken at Popehat requested a special custom version, which is also below the fold. Use at your own risk.
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In The Digital Age, What Is Privacy?

October 11, 2013

A few days ago I wrote about LinkedIn and how apparently they know who I email. After that, I began thinking about how much you can learn about a person just by their digital footprint, especially from an intelligence perspective. What’s interesting is just how much data private corporations like Amazon, Apple, and Microsoft know about everyone.ย So, exactly what kind of things could you figure out just looking at a person’s digital footprint? Let’s think about it…

Your daily travel habits. You know that function “location services”? While it’s cool to show the world that you’re posting something from Thailand, Philadelphia, or China, reviewing your location services history also would allow someone to put together a very accurate profile of where you generally are. Your laptop, and ergo third parties like Apple, know where you are every single day.ย 

Your interests, including what type of music, hobbies and literature they are into. If you’re like me, maybe you buy a lot of books and music in digital format. It’s easier than carrying stuff around everywhere. However, if someone were putting together a dossier on you, they could compile all the music, books, and games you are into. While we used to listen to tapes CDs, now Spotify broadcasts whatever I listen to all over the internet.ย 

Your social network. Just by looking at my Facebook page, you can make some obvious connections about me. Grew up in Downingtown, went to Villanova University, and then Temple Law. Looking at my “friends” section, you can put together a very clear picture of the people I associate with and how frequently. In the olden days, the government would have to subpoena your telephone records or conduct surveillance to figure out who you associate with. Today it’s much easier to simply look at who emails are sent to, and who you’re friends with on Facebook. Keep in mind, part of intelligence is being able to see how people are connected.ย 

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Brian Sims Owns Daryl Metcalfe For Silencing Him On The PA State House Floor Because Metcalfe Believes Marriage Equality Violates “God’s Law”

June 28, 2013
cc2011036 - Gays to Watch for G Philly

State Representative Brian Sims in GQ Magazine

This week it was reported that Downingtown’s own State Representative Brian Sims was going to introduce marriage equality laws here in Pennsylvania. Brian happens to be openly gay,ย and a really great guy from my hometown. As everyone is aware, last week the Supreme Court struck down the Defense of Marriage Act, and in doing so held:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.

In other words, the constitution forbids congress from passing laws based on discrimination. I thought we figured that out a long time ago, but whatever.

On Wednesday, Brian was going to address the Supreme Court’s historic ruling striking down DOMA. However, Representative Daryl Metcalfe didn’t want to hear Brian had to say about it.

Why? Because according to Metcalfe:

I did not believe that as a member of that body that I should allow someone to make comments such as he was preparing to make that ultimately were just open rebellion against what the word of God has said, what God has said, and just open rebellion against God’s law

Now, I don’t know about you, but God has never explicitly told me that homosexuality is wrong. I know it kinda sorta says it in the Old Testament, but let’s be honest… the the Old Testament says a lot of things that we don’t followย in a civilized society. Things like not eating shellfish, selling your daughters into slavery, beating your wife, not trimming your beard, and not wearing polyester.

As a theology minor, no one has ever been able to convince me there is a valid theological basis for discriminating against our gay brothers and sisters. My interpretation of the Bible is that Jesus would be ashamed that Christians are using His name to promote their bigotry and political agendas.

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Of Unreasonable Searches and Seizures and Twitter fights.

April 2, 2013

Of Unreasonable Searches and Seizures and Twitter fights.

I get into a twitter fightย over the illegality of Stop and Frisk as implemented by the PPD with the Philadelphia District Attorney, and next thing I know I’m on Philebrity.

Maybe Twitter is useful for more than sharing cat pictures.*

*Like sharing dog pictures.

P.S. Stop and frisk is still bullshit.


Stop and Frisk in Philadelphia is Bullshit.

March 20, 2013

Search and SeizureI was listening to my local NPR outlet this morning when a particular news story piqued my interest โ€” the ACLU and Kairys Rudovsky Messing & Feinbergย had just filed their Third Report to the Federal District Court for the Eastern District of Pennsylvania regarding the monitoring of stop and frisk practices.ย I said to myself: “I need to get a copy of this report right away.”

Which I did. And I read it. And I got furious.
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Justice Thomas Cracks a “Joke”; the Real Joke’s On Us.

January 15, 2013

Justice Thomas Cracks a “Joke”; the Real Joke’s On Us.

Reading theย newspapersย yesterdayย you’d think it was a slow news day. But was it really?

Hardly.

While “journalists” chuckled over Justice Thomas’ incoherent ramblings about Yale, did anyone think to discuss the underlying case that SCOTUS was hearing?

Gideon of A Public Defender did. You should read his post right now. Here’s an excerpt:

You know whatโ€™s missing in every single one of these articles? A mention of Boyer. Whoโ€™s Boyer, you ask? Boyer, ofย Boyer v. Louisianaย [SCOTUSBlog preview; oral argument transcriptย here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers โ€“ one thatย wasnโ€™tย qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

***

You want a story? Iโ€™ll give you a story: this is the 50th anniversary ofย Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isnโ€™t equal and that people get screwed. Every. Single. Day. And itโ€™s this Court โ€“ Thomas and others โ€“ who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.

But no. Letโ€™s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasnโ€™t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just likeย Thomas always said.

Priorities.

TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

Another step in the Honey Boo Boo-ification of our media. Anything for a joke, right?

Edit: Scott Greenfield beat me to it.


FOP President John McNesby Can’t Stop Saying Stupid Things.

December 7, 2012

[Ed. Aug 1, 2014. So, John, you’ve been pretty silent since this happened.]

FOP President John McNesby Can’t Stop Saying Stupid Things.

Yesterday, I posted about the officers whose testimony was so incredible that the DA didn’t want to call them as witnesses anymore. Veteran attorney Brad Bridge of the Defender Association remarked that the officers were “among the most troubled in the department.”

The officers,

  • Perry Betts;
  • Brian Reynolds;
  • Michael Spicer;
  • Thomas Liciardello;
  • Brian Speiser; and
  • Lt. Robert Otto

were named in several Internal Affairs investigations and civil rights lawsuitsย alleging the use of excessive force, false arrests, and filing false reports.

Unsurprisingly, the shit has now hit the fan. Yesterday, the District Attorney withdrew charges against two men who’d been charged with drug dealing โ€” all because of the lying liars of the Narcotics Unit.

From today’s Inquirer:

Two men accused of drug dealing had charges against them dropped Thursday after their attorney told a judge that five Philadelphia antinarcotics officers involved in their case had “partnered with drug dealers” in crime.

According to the article, defense attorney Larry Krasner argued to Judge Charles Hayden that:

“There was a group of police officers who essentially partnered with certain drug dealers, and they partnered with those drug dealers to do things that were both illegal and outright crimes.”

The Assistant District Attorney Bret Furbur remarked:

ย “[T]he [District Attorney’s] office, my higher-ups, have informed me the case is going to be withdrawn.”

Naturally, it logically follows that the DA realized there was a substantial credibility issue with the narcotics unit officers. Further, it makes sense that when you’re trying get convictions (as ADAs are wont to do), it helps to call witnesses who areย believable. Since these officers proved wholly unreliable, why would the DA want to call them as witnesses any longer?

But instead of noting that maybe, just maybe, FOP5 should raise the bar and suggest that their officers take that oath to tell the truth seriously, McNesby points the finger at District Attorney Seth Williams:

“[District Attorney Seth Williams] has no idea how to run the office. He doesn’t know the ramifications of what he’s done. He’s not just gotten these guys transferred, he’s tarnished their careers.”

He must have a variation on Tourette syndrome, where the afflictedย impulsivelyย says stupid things all the time. He just can’t help himself!ย Blaming the DA for FOP5 officer’s poor conduct that renders them incredible โ€” now that’sย really incredible.

After I shook my head in disbelief for a few minutes, I decided to put fingers to keyboard and pen this open letter.

Dear John:

I think you might find that the officers’ “tarnished careers” is the result that they’re 1) lying under oath; 2) the DA’s office realizes they’re lying under oath; 3) they’re constantly being sued under ยง1983 for civil rights violations; and 4) they’re all the subject of several IAB investigations.

Oh, John, reputations are important. When you have a reputation for being a dirty cop who does whatever he can to get a conviction, well, that kind of taint is difficult to remove. But these reputations don’t just appear out of thin air โ€” they’re earned and well-deserved.

And when an officer’s reputation is such that even the DA doesn’t believe them anymore โ€” well, that’sย it’s not the DA’s fault. In fact, I’m pretty certain that DA Williams knows exactly what he’s doing by refusing to use them. He should be commended by refusing to rely on officers with combustible pants.

Maybe โ€” just maybe โ€” this will teach other officers out there a lesson. When you swear to tell the truth and the whole truth, you do it. When you swear an oath to preserve and uphold the law and ourย constitution, you do it.

Sure, I understand that you’re the president of FOP5, and since it’s an elected position you have a reputation to upkeep among the members. But your reputation with the citizenry, at this point, is nil. And you’re not helping the public perception of the PPD as working to protect their own first, the public second.

When you rush to defend even the worst of the police force, you tarnish the best of FOP5 as well.

So next time you point your finger at the DA for refusing to call dirty cops to the stand, think about where blame really lies.

Or just keep saying stupid things; you seem to excel at that.

In the meantime, Mr. Williams, keep doing the right thing.

[Ed. โ€” Defense attorney Michael Coard, in his article “The 4 Most Annoying White People in Philadelphia” has the following to say about Mr. McNesby, which made me chuckle:

He wants all criminals jailed forever. So whoโ€™s gonna wear the blue uniforms, drive the white cars and beat the black people up when the good copsโ€™ shifts end?]


Six narcotics police transferred because even the DA doesn’t believe their testimony.

December 6, 2012

Six narcotics police transferred because even the DA doesn’t believe their testimony.

File the following statement by FOP president John Mc Nesby under “irony” or “taste of own medicine”:

John McNesby, president of the Fraternal Order of Police Lodge 5, said that the transfers were based on “unfounded accusations” by the District Attorney’s Office and that the allegations should have been investigated first.

“When you’ve got an aggressive group of officers, you’re going to have people who aren’t happy,” McNesby said. “These guys took a lot of guns off the streets, took a lot of drugs off the streets. They did a lot of good work for the city.

Right, John. Because the “good work” they do means that they should be able to run roughshod over the rights of the citizens of the city. Enforcing “the law” is paramount โ€” everyone else be dammed. Truth, Justice, and the American Way? Those are for some big blue boy scout in tights.

Besides, it’s not like they ever threatened anyone’s life while in the line of duty, right?

When the officers caught up to him, Conolly said, he got out of the car with hands raised, but [the officers] threw him to the ground and choked, kicked, and punched him as he yelled for help. [Officer] Liciardello, he said, put a gun to the back of [Connolly’s] head and told him, “Weย areย the cops. If you don’t shut up, I will put a . . . bullet in your head.”

The article finishes with this gem:

McNesby has maintained the innocence of those officers.”It’s a sad day,” he said, “when you have the criminals in the city dictating where cops are going to be working.”

No, John. It’s a sad day when police feel and act like they’re above the law they’re sworn to uphold. And last I checked, it was the District Attorney’s Office that didn’t want to call these officers any longer because they’re lying liars:

According to multiple sources, the District Attorney’s Office recently informed Ramsey that prosecutors no longer wanted to call the officers to testify in drug cases. Those sources said the District Attorney’s Office had determined that the officers’ credibility was too badly damaged.

By the way, these are the officers who are no longer credible:
Transferred to the center city district:
  • Perry Betts
  • Brian Reynolds
  • Michael Spicer
  • Thomas Liciardello
  • Brian Speiser were transferred to Center City districts or the traffic unit.

Transferred to South Detectives:

  • Lt. Robert Otto