Vol. 10, No. 33
Covering Cases Published in the Advance Sheets through August 18, 2003

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

The Patriot Acts and Official American Policy

Child Pornography Under the Exploitation of Minors Statute

"Perp Walks" Held Not Actionable if Designed to Achieve a Legitimate Government Interest

A.C.L.U. v. U.S. Dept. of Justice, 265 F.Supp.2d 20 (D.D.C. 2003) (Judge Huvelle)

Few laws in recent times have been as controversial as the USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”) (herein Patriot I), which Congress hastily enacted into law after the 9/11 terrorist attacks. Civil rights groups across the nation have criticized various aspects of the new law as an excessive and misdirected response to 9/11; and have accused the Government of using that tragedy in an opportunistic means of achieving major changes in the country’s criminal laws that it had been seeking for decades. More than 120 communities across the country have passed resolutions condemning various aspects of Patriot I. (For a detailed listing of the communities that have passed such resolutions, see www.aclu.org/SafeandFree/resolutions/.)

As Judge Huvelle explained in her decision: “Ever since it was proposed, the Patriot Act has engendered controversy and debate. The Justice Department, which is largely responsible for its implementation, has provided only limited information to the public regarding how, and how often, the new provisions described above have been used.” (Id., at 24)

From the outset, the American Civil Liberties Union (ACLU) has been one of the most outspoken critics of Patriot I; and its Web site contains a trove of materials showing how Patriot I has threatened some of our most prized Constitutional rights. A major problem has been that the Bush administration continues to operate in a highly secretive manner. Any time someone asks a question about the use of Patriot I, he or she runs the risk of being called a traitor or a treacherous enemy of the war against terrorism.

On August 21, 2002, the ACLU filed a request under 5 U.S.C. § 552 of the Freedom of Information Act (FOIA), seeking statistical information about how the U.S. Department of Justice (DOJ) had used its new authority under Patriot I. The DOJ quickly claimed that much of the information sought was protected from disclosure by two FOIA exemptions:

What led the ACLU to file its FOIA requests was the DOJ’s refusal to respond to a series of questions posed by the House Judiciary Committee, in June 2002, concerning the DOJ’s implementation of Patriot I. While the DOJ did answer some of the questions posed, it also claimed that some of the questions "required the disclosure of sensitive FISA [Foreign Intelligence Surveillance Act] operational intelligence information," and therefore were classified at the SECRET level.” (Id., at 24).

In any event, while the House Judiciary Committee ultimately received some classified answers, Judge Huvelle noted that those answers “were not (and have not been) made available to the public. [Accordingly,] Plaintiff’s FOIA request, which was filed in August 2002, represents an attempt to compel the [DOJ] to be more forthcoming.” (Id., at 25).

The DOJ moved for summary judgment based on its contention that the disclosures sought by the ACLU were protected under the two cited exemptions to the FOIA; and Judge Huvelle concluded that the DOJ’s assertion of Exemption 1 was “appropriate”; and that “the dispute about Exemption 5 is largely illusory.” (Id., at 21). Accordingly, she granted the DOJ’s motions for summary judgment, and ordered that the case be dismissed with prejudice.

Although the ACLU argued that the exemptions in question were never intended to apply to the type of sheer statistical disclosures that it was seeking and that it was improper to categorize such statistical data as sensitive and “classified” materials, the Court ultimately found that the ACLU could not overcome the heavy presumption that favors the Government in national security cases - even though much of the DOJ’s claims were supported only by “boilerplate” claims that lack in both details and specificity. (Id., at 29).

As a matter of interest, Judge Huvelle also granted the summary judgment motion despite the fact that many of the DOJ’s claims were supported only by “boilerplate” that lacked in both “detail and specificity” (id., at 29) and “notwithstanding the plaintiffs’ compelling argument that the disclosure of this information would help promote democratic values and government accountability.” (Id., at 31).

While much of the decision relates to the merits of the Government’s highly technical contentions about the scope of Exemptions 1 and 5 to FOIA, what is particularly interesting is Judge Huvelle’s discussion of some of the major changes wrought by Patriot I - one of the first judicial analyses of Patriot I that we have seen. In particular, she commented on four significant provisions of the Act:

Related Developments: Perhaps emboldened by a general reluctance of judges to intervene in cases where the Government claims that national security interests are at stake, the Bush administration continues to seek greater powers to spy on and detain those it claims are terrorists or enemies of the state. It has already circulated secret drafts of Patriot II, the next generation of statutes designed to facilitate its war against terrorism. (See, e.g., “Ashcroft Out of Control: Ominous Sequel to the U.S.A. Patriot Act,” by Nat Hentoff, The Village Voice, February 28, 2003).

As reported in The New York Times, on the eve of the second anniversary of 9/11, President Bush told “a cheering crowd of investigators and troops from [a] nearby Marine training base,” that he needed to expand Patriot I in three specific ways: first, he needed legislation to empower Federal law enforcement agencies issue “administrative subpoenas” in terrorism cases without obtaining approvals from judges or grand juries; second, he urged the expansion of the Federal death penalty statutes to cover more “terrorism-related” crimes; and, third, he advocated new laws that would make it even harder for people suspected in terrorism-related cases to be released on bail. In fact, some of these proposals have already been included in a bill entitled the “Antiterrorism Tools Enhancement Act of 2003,” that was introduced to the House on September 9, 2003, by none other than Congressman Feeney of Florida.

The bail-restriction feature is particularly interesting in light of a separate, but somewhat related development, reported on by the Associated Press last week. The AP reported that Defense Secretary Rumsfeld has acknowledged that the United States has “no intention” of filing charges against, or bringing to trial, the 660 alleged terrorist detainees being held in Guantanamo Bay, Cuba. According to Rumsfeld, those detainees would continue to be held, incommunicado and in their cages, not “as punishment,” but "to keep them from going back and fighting again and killing people." He said most of the detainees would be held until the global war on terrorism is over - a fight that he said could last years, if not decades - because “our interest is in not trying them and letting them out.”

Caldarola v. County of Westchester, No. 01-7457 (2nd Cir. 09/09/03) (Judge F.I. Parker)

In 1999, a number of corrections officers working for the Westchester County Department of Corrections were arrested on charges of grand larceny, arising out of their suspected receipt of disability benefits based on fraudulent job injury claims. Their arrests were carefully timed, choreographed and video-taped, and the video-tapes were then widely distributed to the media. Three of the guards who were arrested brought suit, under 42 U.S.C. § 1983, against Westchester County and various government officials alleging that the staged “perp walk” to which they had been subjected violated their Fourth Amendment rights.

The lawsuit was premised on their general right to be free from unreasonable searches and seizures and on the Second Circuit’s ruling in Lauro v. Charles, 219 F.3d 202 (2nd Cir. 2002) that the staged perp walk in that case violated the plaintiff’s right to be free from unreasonable seizures.

In a decision previously reported at 142 F.Supp.2d 431 (S.D.N.Y. 2001), Judge McMahon dismissed the lawsuit, holding that the County had not engaged in any conduct that constituted an unreasonable seizure. In particular, she held that: (1) the act of videotaping the arrestees was not a seizure of intangibles and did not interfere with any possessory interests of the arrestees (id., at 439); (2) the choreography of the arrests did not result in the unreasonable exacerbation of the arrests (id., at 440); (3) the public dissemination of the County-made videotape did not implicate any protected privacy interests (id., at 440-42); and (4) advising the media of the arrestees' impending arraignment did not implicate any constitutional rights (id., at 443). Based on those findings, she granted summary judgment to the defendants

Joseph Freeman, one of the three arrestee-plaintiffs in that lawsuit, then appealed to the Second Circuit, arguing that Judge McMahon erred with regard to her legal conclusions and that the County’s acts of coordinating the arrests, videotaping the post-arrest walk on prison grounds, an disseminating the videotape violated his rights under the Fourth Amendment and the rule established in Lauro that a staged perp walk implicated that plaintiff’s protected privacy interest in not being “displayed to the world, against his will, and in a posture connoting guilt.” (Lauro, id., at 212, n.7).

The Second Circuit affirmed the dismissal of the § 1983 lawsuit, and in the process it distinguished its ruling in Lauro. It held that Lauro was inapposite because, in that case, there was a lack of any legitimate governmental purpose served by the perp walk, since in that case the facts showed “an inherently fictional dramatization of an event that transpired hours earlier.” (Lauro, id., at 213). In the instant case, the Court held that, although Freeman possessed a privacy interest in not having his "perp walk" broadcast to the public, that privacy interest was outweighed by the County's legitimate government purposes in this case. The panel concluded that, in this case:

“The County's purposes in making the videotape were the same as its purposes in distributing the videotape to the media: the County created and distributed the videotape to inform the public about its efforts to stop the abuse of disability benefits by its employees. The fact that corrections officers -- public employees -- were arrested on suspicion of grand larceny is highly newsworthy and of great interest to the public at large. Divulging the arrests also enhances the transparency of the criminal justice system, and it may deter others from attempting similar crimes. Furthermore, allowing the public to view images of an arrestee informs and enables members of the public who may come forward with additional information relevant to the law enforcement investigation.”

The Court did go on to warn that it was not suggesting that government actors have “free reign” to use videotape or “other potentially overly intrusive means to achieve the governmental purposes enumerated above.” But, as a practical matter, the Court’s sweeping acceptance of the legitimacy of the County’s stated purposes for staging the perp walks at issue in this case will make it extremely difficult for a defendant ever to prevail on a claim that his privacy rights have been violated because of a choreographed perp walk. The state will always be able to claim that it’s primary goal was to deter others from committing a similar crime; and it will always be able to argue that the case at issue was sufficiently “newsworthy” to justify the highly publicized arrest.

We are reminded of the standard articulated by Judge Weinstein in Ayeni v. CBS, Inc., 848 F.Supp. 362, 368 (E.D.N.Y. 1994), where he condemned the actions of a law enforcement agent who invited a CBS camera crew into a private residence to record, for prime time television, the actions of law enforcement personnel in carrying out a search warrant. Piercing through the stated reasons given to justify the presence of the TV cameras, Judge Weinstein concluded that the real purpose of recording the events was “to titillate and entertain others” - and, for that reason, he held it was improper.

In Brief

Conscious Avoidance: U.S. v. Abreu, No. 02-1164 (2nd Cir. 09/02/03) - Here the Court held that a trial judge may give a conscious avoidance instruction only when (1) the defendant asserts that he lacks some specific aspect of knowledge required to be proved to convict him and (2) there is a factual basis for the jury to find beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.

Halfway House Placement: Monahan v. Winn, Civ. No. 03-4075-NG (D.Mass. 08/12/2003) - In these four consolidated cases, Judge Gertner addressed an assortment of claims arising out of the BOP’s directive, issued in December 2002, which dramatically revised the ground rules for the placement of inmates in halfway houses. With her typical clarity and precision, Judge Gertner demolished the BOP’s position. In her lengthy memorandum decision, she sharply disagreed with the premise for the BOP’s new directive - namely that confinement in a halfway house is not a form of imprisonment. She then concluded that the policy change was a substantive rule change that should have occurred only pursuant to the Administrative Procedure Act (which the BOP ignored); and that the retroactive application of the new policy offended both the Due Process and Ex Post Facto Clauses and thus was legally invalid.

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