Police Scrutinization

[Eric]

It's no secret that I'm not a fan of the police but I wanted to bring this up to see what others think of the scrutiny officers have to go through on their own personal time. We are hearing more and more about their text messages coming to light, particularly around racism. While we know it's a systemic problem with police, do we really have a right to monitor their personal communications like this? IMO they should have some reasonable expectation of privacy as long as it's on their own personal device during off hours, to me this raises a free speech issue.

 

[Nycturne]

I guess my question is: in what context? Mostly because I haven’t been following this too closely outside our local police (who are doing this stuff on duty over police radios).

If I’m charged with a crime (or even suspected of a crime), a search warrant can be executed against me and my private communications entered into the public record as evidence against me so long as those communications are collected under a valid warrant. I don’t see why officers of the state should be immune to such searches.

If it’s being monitored/collected without a warrant, then that’s another matter and they should have a reasonable expectation of privacy when using personal equipment/devices on personal time (this being a key bit as well). I’d be interested in examples rather than here-say.

 

[Citysnaps]

I think police officers in general represent a cross-section of society. Yeah, there are racist cops, as there are racist citizens. Everywhere. Some are better at lurking under the radar keeping an outward low profile.

In general, I like cops. A lot. But that's just based on my engagements with them in San Francisco hitting them up for conversation and portraits on the street. And doing a couple ride-alongs. Although that represents a hundred or two engagements (a wild guess), that's still a pretty limited cross-section out of roughly 1,800 sworn officers.

I'm fully aware of *some* of their racist texting reported in the past. I'd like to believe that's an anomaly, though I have zip to support that, other than my limited and anecdotal encounters.

Still, I'm inclined to think that's probably more or less in line with a cross-section of San Francisco and surrounding cities in which they live, even though SF and the Bay Area are generally considered to be liberal.

With respect to cops having an expectation of privacy regarding text messages... If they're doing that when they're on duty, and especially if it's among other cops (whether on duty or not), that rises to systemic bad behavior and needs to be nipped in the bud when discovered. All imo...

Also... with respect to SFPD racist texting, AFAIK, that's not due to official monitoring, but from some officers either being in the texting loop, or hearing about it from other cops, and then reporting it, which then leads to an investigation.

 

[GermanSuplex]

Well, sometimes it could be someone who received the message getting alarmed and snitching - the best of kind of snitch, if there is such a thing.

Then you have the boneheads who misuse their government property to send this crap.

I understand the logic about the free speech concern. If someone sent his wife a racist message on his own phone, off work - should it come to light? I don't know. I suppose someone could theoretically be a huge racist and still do a fair job. In that sense, would their personal bias matter?

I guess it comes down to what the cops agree to when they take the pledge.

I'm not big on cyber-stalking and hackers and the like. But if he sends a colleague a drunken, racist message and the colleague turns him in to the Chief, then I think that's just how it goes.

I think Social Media is similar - if someone says something racist on Facebook, is it binding to their job? Good questions, I don't have answers. I guess until you can get a litmus test for racism, hatred or bias, there are no easy answers.

 

[Cmaier]

It's no secret that I'm not a fan of the police but I wanted to bring this up to see what others think of the scrutiny officers have to go through on their own personal time. We are hearing more and more about their text messages coming to light, particularly around racism. While we know it's a systemic problem with police, do we really have a right to monitor their personal communications like this? IMO they should have some reasonable expectation of privacy as long as it's on their own personal device during off hours, to me this raises a free speech issue.

If I am representing someone from a marginalized group who is arrested, I am going to subpoena all that stuff anyway, because it may be useful evidence for the defense. As a general rule, anything I use is going to be public anyway.

The fundamental problem is that if a police officer is sending racist texts or posting racist memes on social media, then every time he or she is a witness (and a lot of prosecutions depend on the testimony of the officer), those posts are legitimate evidence of potential bias and perjury.

 

[Eric]

If I am representing someone from a marginalized group who is arrested, I am going to subpoena all that stuff anyway, because it may be useful evidence for the defense. As a general rule, anything I use is going to be public anyway.

The fundamental problem is that if a police officer is sending racist texts or posting racist memes on social media, then every time he or she is a witness (and a lot of prosecutions depend on the testimony of the officer), those posts are legitimate evidence of potential bias and perjury.

I understand if something is collected as evidence for an investigation. But wouldn't a text message be deemed more private than posting on social media?

 

[rdrr]

I understand if something is collected as evidence for an investigation. But wouldn't a text message be deemed more private than posting on social media?

Is anything we do private these days.

 

[Cmaier]

I understand if something is collected as evidence for an investigation. But wouldn't a text message be deemed more private than posting on social media?

Once it’s part of a case, it would be very difficult to not make it public. The default is for everything to be public. To keep something secret (to seal it) you need to make a pretty compelling case that the harm of publicizing it outweighs the public’s right to know. Justice is supposed to be transparent. We frequently seal things like trade secrets and generally you to make a written motion, and have a sworn declaration from someone explaining what the harm is. And that’s assuming the sealing is unopposed by the other side. If the other side opposes, or the press intervenes, the hurdle becomes pretty big.

 

[Herdfan]

If I am representing someone from a marginalized group who is arrested, I am going to subpoena all that stuff anyway, because it may be useful evidence for the defense. As a general rule, anything I use is going to be public anyway.

How would you subpoena it from say a locked iPhone?

If they restarted it, then FR won't work and you need the passcode which they aren't going to give you, Apple won't help you etc.

 

[rdrr]

How would you subpoena it from say a locked iPhone?

If they restarted it, then FR won't work and you need the passcode which they aren't going to give you, Apple won't help you etc.

Good point, but my understanding is once you get a subpoena you aren't allowed to do anything to that phone that would impede the investigation. Not sure that rebooting the phone intensionally to disable Face ID would be considered impeding an investigation, definitely deleting the texts would.

 

[Citysnaps]

How would you subpoena it from say a locked iPhone?

If they restarted it, then FR won't work and you need the passcode which they aren't going to give you, Apple won't help you etc.

I *think* they can be subpoenaed from the phone service provider (Verizon, At&T, etc.).

 

[Roller]

Although I might feel differently if I were young and Black, I can't imagine living without police, and I appreciate them for what they do and the risks they take. The police officers I've known personally were highly dedicated and wonderful to work and be friends with.

As for what they do and say on their personal time, I don't think it's that different than some other professions. For example, I wouldn't want my doctor to engage in bigoted personal communication, but I don't think I have a right to know about it as a matter of course. If such behavior became public for any reason, though, I would absolutely take that into account.

I often advise people that just about anything they write, be it via social media, texting, or email, is at risk for disclosure under certain conditions. As the Miranda warning goes, anything you say…

 

[Nycturne]

I understand if something is collected as evidence for an investigation. But wouldn't a text message be deemed more private than posting on social media?

I know @Cmaier already provided a good response here, but civil cases are still subject to discovery and subpoena. So someone suing officers for wrongful death could very likely get that stuff dredged up in the same way that a criminal investigation would as long as the lawyers for the officers are complying in good faith.

The reasonable expectation of privacy isn’t an absolute right, and it’s not a new practice to show someone’s state of mind as part of a suit (i.e. entering private letters into evidence prior to e-mail, etc). If I sue you personally, you don’t get to hide behind your employer for the purposes of discovery, is my understanding. Even if what you did was on duty.

Good point, but my understanding is once you get a subpoena you aren't allowed to do anything to that phone that would impede the investigation. Not sure that rebooting the phone intensionally to disable Face ID would be considered impeding an investigation, definitely deleting the texts would.

I would also imagine that threatening obstruction and contempt of court are strong motivators.

 

[Cmaier]

How would you subpoena it from say a locked iPhone?

If they restarted it, then FR won't work and you need the passcode which they aren't going to give you, Apple won't help you etc.

If the cop is subpoenaed and won’t provide the data, then the cop is in contempt. At the very least, even if the cop doesn’t go to jail for that, the cop’s testimony is now worthless because I just question him about why he is hiding things (And the judge likely wouldn’t let such a cop testify anyway)

 

[Cmaier]

I *think* they can be subpoenaed from the phone service provider (Verizon, At&T, etc.).

If they are SMS, yes. Not iMessage messages, of course.

 

[Yoused]

I was on a jury back in July. We spent a lot of time having coffee and bagels in the jury room while the contenders tussled over what could be entered into evidence (and hence, seen by us). Things not entered into evidence are not literally public, at the discretion of the lawyers. If the judge rules a thing inadmissable, I am unclear on what a lawyer's duty is as to handling the material responsibly.

Consider,

Did you declare "I like to molest 8-year-old boys"?​

I did not say that​

But we have this text of yours right here, dated October 8th, that says exactly that.​

If you look at the previous text, Nobert asks me, "What did Yerble say then?" I was telling Norbert what he told me. Those were not my words, I was quoting Yerble.​

Texts tend to be terse. The ["] key takes extra effort to find. Using text message content as evidence must be done with extreme caution. Kind of like the case where the black guy said during interrogation, "you should get me a lawyer, dawg" and the prosecutor convinced the judge that he was asking for a "lawyer dog" so it did not count.

 

[Cmaier]

I was on a jury back in July. We spent a lot of time having coffee and bagels in the jury room while the contenders tussled over what could be entered into evidence (and hence, seen by us). Things not entered into evidence are not literally public, at the discretion of the lawyers. If the judge rules a thing inadmissable, I am unclear on what a lawyer's duty is as to handling the material responsibly.

Typically there is an operative “protective order” that describes the handling of materials. These often define different levels of secrecy. “Undesignated” materials are free game - you can typically do what you want with them. “Confidential” materials typically can only be used for the case and must not be disclosed. “Attorneys’ Eyes Only” materials cannot even be seen by the other party, but only his or her lawyers.

The party producing the documents has the obligation to designate the materials appropriately, and the other side can challenge such designations (and third parties like the press may come along and move the Court to change designations as well). Even stuff that is not “in evidence” (i.e. not shown to the jury, or inadmissible) frequently is disclosed to the public, because confidentiality has nothing to do with admissibility.