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Lawsuit Accuses Police of Touching Private Parts During Pat Downs

Submitted by Amaris Elliott-Engel on Tue, 07/21/2015 - 21:07

Here's a piece I wrote for the Connecticut Law Tribune about a lawsuit alleging a police officer in Connecticut went too far when stopping two black men:

When two black brothers were pulled over by a cop in the city of New London, the officer frisked them both, allegedly touching their genitals and their buttocks. When one of them protested and turned around during the pat down, he was arrested for interfering with the police officer.

Now four years later after that October 2011 traffic stop, U.S. District Judge Janet C. Hall has ruled that there is enough evidence to to go to trial on the allegations that what happened to Donald Gilbert, the driver of the vehicle pulled over by Officer Roger Newton, and Andre Gilbert, the passenger in his brother's vehicle, were part of policy by New London police to arbitrarily stop motor vehicles and arbitrarily arrest people.

Hall found that the two brothers' case could survive summary judgment because they have produced evidence of several New London residents complaining of how they were treated by police during traffic stops and that their cars were searched without any justifiable legal reason. Newton also is being sued individually.

Donald Gilbert complained that Newton had touched him inappropriately during a search in May 2010—almost a year-and-a-half before his brother and he were pulled over and allegedly molested by Newton. Another man also alleged that a different officer, when stopping him while he was driving in New London in 2014, "put his hand underneath my crotch and squeezed my testicles." The plaintiffs also argued that the video of the stop by the two Gilbert brothers has been used by state prosecutors to train the police officers in New London how not to do pat downs.

"A reasonable jury could find that New London was deliberately indifferent to its officers' practice of making traffic stops without reasonable suspicion of any wrongdoing, following such traffic stops with overzealous (to put it gently) pat-down searches, and searching citizens' cars without a legal basis for doing so," Hall opined.

The issue of law enforcement stopping minorities without reasonable suspicion and arresting them without probable cause has come into the national limelight after the U.S. Department of Justice found that racial bias was endemic in how the Ferguson Police Department in Missouri treated black residents. The issue previously arose in Connecticut, where East Haven police were accused of profiling Latino drivers for traffic stops and subsequent arrents. Those allegations led to federal investigations, criminal prosecutions and civil lawsuits.

In Newton's affidavit filed with the police department about the 2010 stop, he stated he had been sitting in his parked car talking on his cell phone. But Newton had him step out of the car to be frisked and "'patted me down twice sticking his fingers in my a-- … I do not believe that the officer had the right to violate me."'

New London Captain Steven Crowley said that Newton had gone over the line in the 2010 incident, even though Newton said he thought Gilbert might be involved in drug-dealing. "If [Gilbert] had consented to the initial actions, he clearly had made his feeling well know during the pat down that he was not comfortable with being touched by Newton," Crowley concluded, according to court papers.

In an interview, Newton's counsel, Elliot B. Spector of Hassett & George, said that his client recognized the Gilberts as "well-known drug dealers" and that it is known that people can conceal weapons near their private parts.

When the case goes to the jury, it will be an issue of whether it was reasonable for Newton to conduct the patdowns on the Gilberts in the way he did, Spector said. And whether it was reasonable will be "left to an issue of credibility," he said

The plaintiffs also showed that the New London deputy police chief, when reviewing another man's complaint against Newton, said "the enforcement of seemingly minor motor vehicle offenses is a proven tool in the efforts to curb crime and [drug] trafficking."

New London officials acknowledged providing training to Newton about the legal basis for using force, stopping motor vehicles and search and seizure. The city said it had no knowledge that there was any practice by its police officers of conducting arbitrary motor vehicle stops or arbitrarily arresting people without probable cause.

Hall also said that the plaintiffs are entitled to damages if they can prove at trial that their state constitutional rights to be free from unreasonable searches and seizures and to not be arrested unless "clearly warranted by law" were violated.

The federal judge rejected a ruling by the Connecticut Appellate Court that only "egregious" violations of people's rights under the state Constitution are compensable. She noted that federal judges in Connecticut have been of different minds on whether the Connecticut Supreme Court's 1998 ruling in Binette v. Sabo means that citizens can sue for money damages every time their rights to be free of unreasonable searches and seizures and illegal arrests are violated.

Hall predicted that the Connecticut Supreme Court would rule that all constitutional violations "give rise to a private cause of action, whether the offending conduct is egregious or merely unreasonable."

Discovery has closed in the case, and the judge said that the Gilberts' counsel did not produce enough evidence that they were being racially profiled or that the police department intentionally discriminates against minorities.

Spector said there was no evidence of discriminatory motivation by his client and he is gratified that claim was dismissed. Newton has moved out of state and is longer with the police department, Spector said.

The brother who was arrested by Newton with interfering with an officer had that charge nolled.

John W. Cannavino Jr. and Jonathan C. Zellner, of Ryan Ryan Deluca, in Stamford are representing the city. Cannavino declined comment. The Gilberts are being represented by Conrad O. Seifert, of Seifert & Hogan in Old Lyme. Seifert declined comment.

Supreme Court Rules Traffic Stops Can't Be Extended for Drug-Sniffing Dogs

The U.S. Supreme Court, 6-3, has ruled that police can't prolong traffic stops in order to await the arrival of drug-sniffing dogs to inspect motor vehicles, The New York Times' Adam Liptak reports: "'“A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,'" Justice Ruth Bader Ginsberg wrote for the majority.

The Nebraska defendant had his traffic stop delayed by eight minutes after he got a written warning for driving on the shoulder of a state highway. The court's ruling means that the large bag of methamphetamine found in the defendant's car could be suppressed if a lower court does not find that there was reasonable suspicion to prolong the traffic stop.

In separate dissents, Justice Clarence Thomas wrote that the court's new rule is not workable, and Justice Samuel Alito wrote that police officers will now make sure to issue tickets or warnings as the last step during traffic stops.

Judge Rejects Challenge to Internet Surveillance

U.S. District Judge Jeffrey White of the Northern District of California has ruled that a group of AT&T customers haven't been able to show they have standing to show that their Fourth Amendment rights were violated by alleged surveillance of all of their Internet communications, The Recorder's Ross Todd reports. Even though a retired AT&T technician Mark Klein reports that the the company's Internet traffic is routed to a secret room controlled by the government, the judge "found that Klein could not establish 'the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge' and that lawyers challenging the program under the Fourth Amendment hadn't offered enough admissible evidence to support standing."

Drivers Face Protracted Proceedings to Get Cash Back From Police

The Washington Post investigated 400 seizures from when police stopped drivers under a practice called "highway interdiction" and seized cash, having "their departments share in the proceeds through a long-standing Justice Department civil asset forfeiture program known as Equitable Sharing. Police can also make seizures under their state laws." Many drivers "had to engage in long legal struggles to get their money back after officers made roadside judgments about one of the most fundamental of American rights — the right to own property," the Post further reports. Advocates say that the practice has resulted in abuses of power in which the innocent suffer because their cash is seized even though they were not arrested.

Microsoft Ordered to Turn Over Customer Data Stored in Ireland

In a major landmark in the development of digital privacy, a federal judge has ordered Microsoft to turn over to the U.S. government a customer's emails and other account information stored in an Irish data center, Re/code reports. Microsoft unsuccessfully argued that a U.S. warrant couldn't extend to customer information held abroad.

Re/code said the case appears to be the first in which a U.S. warrant for data held overseas was challenged by an Internet firm.

Microsoft Contests Warrant for Overseas Data

Microsoft is fighting a U.S. warrant for data stored overseas in Ireland, Corporate Counsel reports. The outcome of the litigation could have big implications for cloud computing and data privacy.

Microsoft argues that the warrant doesn't extend to data stored on servers located overseas, while the U.S. government said that the pre-cloud computing-era Stored Communications Act gives it access, Corporate Counsel also reports. 

Arguments on the dispute are set to be heard Thursday.

Supreme Court Rules Warrants Needed to Search Cell Phones When Arresting People

The U.S. Supreme Court ruled that it is an unconstitutional search and seizure for police officers to search someone's cell phone when arresting them, Volokh Conspiracy's Orin Kerr reports. The court said the searching a cell phone doesn't ensure that officers won't be harmed or that evidence won't be destroyed, which are both reasons that officers are allowed to search arrestees while taking them into custody: "'There are no comparable risks when the search is of digital data. In addition, [United States v.] Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson."

KY Latest State Mulling Drone Legislation

Kentucky is the latest state to consider legislation to prohibit the warrantless use of drones by law enforcement, the Kentucky Enquirer reports. A Northern Kentucky legislator is reintroducing a bill to bar law enforcement agencies from using drones to gather evidence without warrants. Fourteen states have passed laws limiting the use of drones, the Enquirer reports.

Meanwhile, there are three drone bills pending in Pennsylvania, including two bills to bar drone interference with hunting and fishing.


FBI Seeks Easier Process to Hack Computers

The FBI and the Justice Department are seeking to change criminal rules to make it easier for law enforcement to hack into suspects' computer "for evidence when the "computer’s physical location is unknown — a problem that officials say is increasing as more and more crime is conducted online with tools to conceal identity," The Washington Post's Ellen Nakashima reports.

Here's the rule:

Federal officials say that the rule change would not allow searches that aren't already permitted by law, the Post further reports.


PA Supreme Court OKs Warrantless Searches of Cars

The Pennsylvania Supreme Court, 4-2, has ruled that warrantless searches of cars are permissible, the Harrisburg Patriot-News reports. The Supreme Court adopted a probable cause standard. Justice Seamus P. McCaffery, the author for the majority, said Pennsylvania would now have a uniform standard in federal and state court and would "'avoid unnecessary confusion, conflict and inconsistency in this often-litigated area.'" In dissent, Justice Debra Todd said the majority was contravening "'225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright.'"


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