Charges could be brought for deliberately coughing on people during COVID pandemic

Deliberately coughing on other individuals could lead to criminal charges if the victim becomes infected with a deadly disease like the novel coronavirus COVID-19, according to legal expert Mark Reichel.

Late last month, police in Nevada County said they were trying to track down two individuals who are accused of doing just that.

In at least one case, a woman said two unknown individuals were upset after she encouraged them to wear face masks while shopping at a local grocery store. The two people eventually did put on masks, but one of the two chased the woman into the parking lot of the store, started shouting at her and made coughing noises.

The woman reported the incident to the Grass Valley Police Department. An investigation is now under way into what happened. Officers said if the woman is able to identify the man and it can be proven he acted the way she described, the man could face misdemeanor assault charges.

In an interview with FOX40 News, Mark said that might not be the worst of it for people who deliberately cough on or otherwise try to infect people.

“If it’s an offensive conduct that puts you in reasonable fear of harm, that’s an assault,” Mark said. “If it can be proven somehow that they got it from that person, that they got it from that exposure and they die, the question is do we have a murder case on our hands?”

In California, state law requires individuals to wear face masks, take social distancing measures and engage in other safety practices to curb the spread of COVID-19. More than 10,000 people in California have died from the disease since state officials began tracking it in early March.

Click or tap here to read the full story from FOX40.com

Sacramento police reform measures don’t go far enough, legal experts say

A series of police reform measures approved by the Sacramento City Council last week are small steps in the right direction, but the city still has a lot of work that needs to be done and shouldn’t be lauded for such minor changes, legal experts argued on Wednesday.

The reforms were prompted by calls from local activists as part of a national movement following the death of George Floyd, an unarmed black man who was killed during a police encounter by a white Minneapolis police officer.

Since then, officials in towns small and large throughout the country have looked internally at what can be done to fix the fractured system of policing.

n Sacramento, city leaders passed a series of measures that, among other things, reallocated funds away from the Sacramento Police Department toward other community initiatives; banned the use of choke holds during most police encounters; and paved the way for the creation of an independent inspector general who would be tasked with the responsibility of reviewing allegations of police misconduct and abuse of force.

Legal experts in Sacramento said the measures were a long time coming — and should have come a lot sooner.

“The policy proposals from [Sacramento Mayor Darrel Steinberg] and city officials are much delayed and hardly reform,” Elizabeth Kim, the head of the National Lawyers Guild in Sacramento, told the Davis Vanguard in an interview.

Other steps need to be taken by the city, Kim said, including an acknowledgement that so-called “non-lethal” force approved in most cases is, in fact, extremely dangerous and can be lethal for the subjects of police encounters.

Criminal defense attorney Mark Reichel agreed, pointing out the inequities between ordinary citizens and law enforcement officials.

“Lawfully, [citizens] cannot resort to force if someone steals their car, their identity, or assaults their family,” Mark said. “But the police have that lawful right — the right to use force if needed.”

Mark said it was clear that Sacramento officers had been enabled to use that force because of the city’s inaction for a long time.

Click or tap here to read the full story at the Davis Vanguard

San Francisco police will stop posting mugshots on social media under revised policy

The San Francisco Police Department says it will end the practice of posting mugshots for criminal suspects on social media and won’t automatically distribute those mugshots to members of the news media, reversing a years-long practice that has become commonplace in law enforcement agencies throughout the country and across the nation.

The decision was made in consultation with the San Francisco Public Defender’s Office who argued that the practice of posting mugshots online had the potential to taint criminal trials and follow accused individuals long after any debt to society is paid.

“Most who get arrested are not convicted of a crime,” Mano Raju with the San Francisco Public Defender’s Office told the Davis Vanguard. “And many of those who are convicted can eventually have those convictions expunged. But, the online image is forever and hinders that person from gaining meaningful employment or even housing.”

“At a time when the nation has renewed its focus on rethinking the collateral consequences of a criminal conviction, having seen the devastation wrought on communities from decades of tough-on-crime policy, this policy takes a step in the right direction,” Raju said.

Raju asked for the police department to expand on its policy by considering whether posting a mugshot of a young suspect is warranted if the crime is minor.

“If a 19 year-old San Franciscan is convicted for a minor non-violent crime, do we want their mugshot to be easily searchable for the rest of their life? I don’t think so,” Raju said. “San Francisco is a city that believes in second chances. The exception in the policy should not become the rule.”

Under the new policy, the police department will not automatically distribute mugshots of suspects to members of the news media, though nothing prevents reporters from asking for and receiving the mugshots separately.

The move comes as news organizations across the country weigh the merits of posting mugshots in photo galleries and news stories online, especially for minor alleged offenses where the harm of the crime is outweighed by the potential implications of search engines like Google indexing news stories that can be found by prospective employers, landlords and others.

Earlier this year, an editor at a Cincinnati television station announced his outlet would stop posting mugshots online, except in limited circumstances where there was a clear nexus to public safety.

WCPO-TV digital content producer Mike Canan wrote that many journalists justify the use of mugshots because they have the ability to go viral and increase engagement, especially if the photograph looks awkward or funny. But that alone, he said, doesn’t rise to the level of being newsworthy or informative.

“Somewhere in that process, the journalist forgets that this is a real person, not simply the butt of a joke,” Canan wrote. “In addition, many crimes we cover happen in low-income communities. These crimes, often borne out of poverty, disproportionately involve African Americans. Putting mug shots of those arrested online and on TV has the potential to reinforce racial stereotypes.”

Canan said he was limiting the use of mugshots to cases where a person may be suspected of a serious crime and still on the loose, or where police believe there may be more than one suspect connected to a serious crime and they need the public’s help locating them. Another exception, Canan said, might be if a person’s name is so general that he or she is likely to be confused with other members of the public who have not been accused of crimes.

Canan is not alone in his decision: It was preceded by a similar policy at the Napa Valley Register newspaper and followed later this year by the Gannett Corporation who started removing mugshot photo galleries from websites associated with GateHouse newspapers (Gannett and GateHouse merged in November 2019).

In a statement, a Gannett executive said mugshot photo galleries had the potential to reinforce negative and false racial stereotypes and unfairly disadvantage photo subjects in other ways. Gannett said it would continue to publish mugshots in news articles when it was appropriate to do so.

Mark Reichel, a criminal defense attorney based in Sacramento, said policies that limit the publication of mugshots help ensure a fair process for those accused of crimes because suspects have an immediate presumption of innocence.

“Mugshots can be tremendously detrimental to constitutional rights for all Americans,” Mark said. “The very first reaction by most people when informed of something that is important to them (like being a juror or a witness in a criminal case), that they don’t know much about, is to log directly on to the internet.”

Even if a person is acquitted of a crime, a mugshot can follow them around on a news story that is never erased from the web.

“Mugshots are graphic, and that is a ‘bell that can’t be unrung,'” Mark said. “Prejudice begins at that very first moment. As well, persons who are completely innocent will still have their image — something that they cannot change — forever associated with being a criminal.”

(Header photo by Tomás Del Coro, Flickr Creative Commons)

Accomplice charges likely coming for other officers involved in George Floyd’s death

One week after an unarmed Minneapolis man died during a police encounter, community members and activists continue calling for charges against three officers who were connected to the incident.

Former Minneapolis police officer Derek Chauvin is the only person so far to faces charges in connection with the death of George Floyd, an unarmed black man whose arrest made international headlines following his death.

A bystander to the arrest captured cellphone video showing Chauvin kneeling on Floyd’s neck during the arrest. Multiple times, Floyd could be heard telling Chauvin and other officers on scene that he was in pain and couldn’t breathe.

Floyd’s lifeless body was placed on a stretcher and taken away from the scene in an ambulance, the video shows. He was pronounced dead a short time later.

Chauvin was arrested last Friday and booked into jail on charges of manslaughter and third-degree murder. But three other officers at the scene — Thomas Lane, J.A. Kueng and Tou Thao —  have not been criminally charged in connection with Floyd’s death.

Sacramento criminal defense attorney Mark Reichel told FOX40 News on Tuesday he believes charges against the other three officers are forthcoming, and it’s simply a matter of time before prosecutors in Minnesota announce them.

“Once you’re aware a crime is being committed, if your presence is enough to prevent it from being stopped, you can be charged as an accomplice,” Mark said.

The three officers could be charged with accomplice liability — also known as aiding and abetting — for having reasonable knowledge that Chauvin was committing a crime but failing to stop it. Eyewitness video captured at the scene showed at least one officer repeatedly telling bystanders to stay out of the street while he was standing mere feet away from Chauvin and Floyd.

The video evidence is likely going to be key in charging the other three officers with accomplice liability in the future.

“It’s going to come down to, what did you see? What did you hear? What did you know?” Mark said. “It’s my understanding they’re looking at the facts right now. Some of those facts are, when were they aware there was no pulse? When were they aware those other officers are saying, roll him over…to the right side?”

In a separate but related legal action, state officials in Minnesota filed a civil rights complaint against the Minneapolis Police Department. That complaint opens the door for state investigators to comb through nearly a decade of police cases connected to the department to see if there are additional civil rights violations.

Senate, Trump likely to reject bill that would have lowered cost of prison phone calls during pandemic

A massive second stimulus package that would have provided $3 trillion in relief due to the ongoing coronavirus health pandemic included a much-needed cap on the cost of phone calls placed by inmates in prisons and jails to loved ones.

Passed on May 18, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act included programs and policies that would have expanded health insurance, rural broadband connectivity, benefits for veterans, financial assistance to the U.S. Postal Service and assistance to federal aviation and railroad workers. In addition to that assistance, it would have provided another $1,200 economic relief check to millions of Americans at a time when unemployment filings are at a record high.

One little known provision of the HEROES Act is a cap on the cost of phone calls placed between inmates and their families.

Telephone calls from jails and prisons are often portrayed in TV shows and the movies as a lifeline between characters in custody and those on the outside world. Often left out of the script is just how much those calls can add up in a relatively short period of time.

At one federal prison in California, phone calls cost $3.25 and are capped at 15 minutes per session. That works out to more than 21 cents a minute, more than double what Sprint charged for long-distance service in the mid-1990s.

One woman in Massachusetts said she spends more than $6,000 a year connecting with her incarcerated husband over the phone. Her calls costs between $5 and $6 a minute each, and that’s before the prison’s phone service tacks on administrative fees.

While inmates may make for unsympathetic subjects, the exorbitant cost of phone calls is problematic for everyone: Studies have shown that when inmates have contact with their family and friends, it helps them become positive, productive members of society at the end of their sentences. But the expense of phone calls has the opposite effect on disenfranchised inmates who are too poor to afford them.

To make matters worse, the ongoing health crisis brought on by the novel coronavirus COVID-19 has led to jails and prisons halting in-person family visits. The phone remains one of the few tools available to inmates who need to maintain their relationships with loved ones on the outside.

Advocates have long pushed for the Federal Communications Commission (FCC), the federal agency that regulates telecommunication services in the country, to impose a per-minute fee cap on the cost of prison phone calls. Lawmakers finally appeared ready to act with the passage of the HEROES Act, which capped collect phone calls at $0.75 per 15-minute session, making the per-minute cost around $0.05. Prepaid phone calls, where inmates pay for the cost of the session, would be limited to $0.04 cents per minute.

The HEROES Act passed on May 15 with a 208-199 vote that was largely divided along party lines, with Democrats largely favoring the bill and Republicans opposing it.

“This is the most significant federal legislative vote on prison phone justice in history, and it is needed now more than ever,” Bianca Tylek, an executive director with the advocacy group Worth Rises, said in a statement. “Right now, in the middle of an economic crisis, predatory prison telecom corporations are still charging families as much as $25 for a 15-minute call with an incarcerated loved one. The exorbitant cost of these calls has long pushed families—disproportionately Black and Brown due to racist policies and policing—into debt, but times are even harder due to the COVID-19 pandemic.”

But the measure still has to be passed by Senate lawmakers and signed into law by President Donald Trump. Both of those things are unlikely after lawmakers in the Senate and officials with the Trump administration said they were hesitant to go forward with a second economic stimulus package.

Republican senators have called the House bill “dead on arrival” and have resisted efforts to take up the measure. Senate Leader Mitch McConnell has acknowledged the need for further economic relief, but says he intends to work with officials within the Trump administration to determine what’s needed and what’s not.

Whether that need will include a financial break for inmates who need to connect with their loved ones remains to be seen.

New records reveal how ICE, Border Patrol use secretive cellphone surveillance tool

For years, law enforcement agencies across the United States have attempted to keep details of a dragnet cellphone surveillance tool under wraps. But their efforts have fallen short time and time again thanks to intrepid journalists and civil liberties groups who have successfully filed public records requests seeking information about these spy devices.

One of the most-recent requests of this type comes from the American Civili Liberties Union and the New York Civil Liberties Union who for two years have fought federal immigration agencies to learn more about how their law enforcement officers use so-called Stingray devices to catch targets and gather evidence.

Sold by the Florida-based Harris Corporation, a “Stingray” is a cell site simulator device that tricks phones to connect to it instead of a legitimate communications tower. When deployed, Stingrays force all phones in a given area — sometimes as large as a few city blocks — to re-route phone signals to it. Using attached computers, law enforcement officers are able to obtain phone data like call and text message logs and geographic location.

While officers may be using Stingrays to capture criminal suspects, their design means ordinary, often innocent individuals also have their phone data swooped up by the devices. Few law enforcement agencies have acknowledged using the devices, and even fewer have offered details about how they purge data of innocent individuals who are not the targets of their investigations.

The shroud of secrecy around Stingrays and similar devices runs so deep that prosecutors have been known to drop criminal cases to keep police use of these devices hidden from public knowledge. Some criminal cases have later been re-opened after judges and defense attorneys learned that “confidential sources” used in investigations were actually Stingrays.

Law enforcement agencies say they’ve been directed by federal officials to keep their purchase and use of Stingrays and other devices a secret because of non-disclosure agreements forged between those agencies, the federal government and Harris Corporation. But judges have routinely sided with the ACLU and other organizations who file records requests for information about Stingrays, and details about the devices have trickled out for years.

One of the most-egregious details learned from public records requests is how state, county and local law enforcement agencies are able to obtain the devices. Records show departments routinely request Department of Homeland Security grants to purchase Stingrays and accessories, which can total in the thousands of dollars.

Grant applications say police departments, including some in California, need to obtain the devices for use in anti-terrorism investigations. But documents obtained by local media outlets show the devices are often used in ordinary criminal investigations with no nexus to terrorism or homeland security matters.

In 2017, the Detroit News published an article describing how immigration agents there were using Stingrays to track down undocumented immigrants following a crackdown issued by President Donald Trump. That report was the basis for a series of public records requests filed by the ACLU seeking information on how often Immigrations and Custom Enforcement (ICE), Border Patrol and other federal immigration agencies were using Stingrays and for what purpose.

After waiting two years, the ACLU filed a lawsuit against ICE and their sister agencies, the Customs and Border Patrol (CPB). The lawsuit worked, and earlier this year, those federal agencies started handing over hundreds of documents (PDF 1, PDF 2) related to their use of Stingrays and other devices.

According to the ACLU, the documents show ICE spent hundreds of thousands of dollars securing Stingrays and upgrading to newer hardware called Crossbow that allows immigration agents to track 3G and 4G LTE smartphones of targets. The documents show ICE had used either a Stingray, Crossbow or some other kind of cellphone transmitter simulator more than 400 times between 2017 and 2019.

One of the most alarming revelations in the document is that law enforcement agencies have known since at least 2016 that ordinary phone users can deploy so-called “IMSI catchers” that simulate the very data collection activity that Stingrays and Crossbows possess. While federal officials suggested deploying anti-IMSI catchers in the wild, they worked hard to keep knowledge about this vulnerability a secret, even though it had the ability to threaten the privacy and security of ordinary phone users.

Worse, while officials in other countries have measured whether use of Stingrays or Crossbows can impair a person’s ability to make emergency phone calls (they can, studies conducted by these governments show), federal agencies have so far failed to carry out their own similar testing to see if using these phone surveillance tools could interfere with 9-1-1- calls.

“There can’t be accountability without transparency,” the ACLU said in a statement issued earlier this week. “The release of these records — albeit with redactions — provides some helpful insights into what was previously an extremely secretive surveillance practice. …  That’s good news, but concerns remain.”

Those concerns include how ICE uses these surveillance tools in ordinary immigration cases while telling the public that it doesn’t and CPB’s failure to turn over documents under the ACLU’s FOIA (the CPB says it has no responsive records, but the ACLU said this is unlikely because documents already made public revealed CPB had spent $2.5 million to obtain 33 cellphone transmitter simulator devices).

“We’re demanding the court order CBP to explain how it conducted its prior searches for records responsive to our FOIA request and to conduct a new search for responsive records,” the ACLU said. “The use of powerful, surreptitious surveillance equipment is concerning in any context. But when agencies such as ICE and CBP, with a long history of abusive practices, evade requests for information and then obfuscate provided information, we should all be concerned.”

Monterey County prosecutors open probe into Tara Reade’s prior testimony

Prosecutors in Monterey County, California have launched a formal investigation into Tara Reade, the woman who recently accused presumptive Democratic presidential nominee and former senator Joe Biden of sexual assault.

Reade, who also went by the name Alexandra McCabe, offered expert testimony in dozens of criminal cases as a special victim’s advocate, according to numerous reports.

But some of her sworn testimony has come under fire following investigations by CNN and other news outlets that show inconsistencies in her education and employment background.

Reade made international headlines earlier this year after accusing Biden of sexual assault while she worked as an employee of the senator’s office in the early 1990s (Biden has denied the accusation). Years later, Reade found herself in Washington state where she claimed she graduated from Antioch University in Seattle with an Associate’s Degree and received a law degree from Seattle University.

Reade offered that part of her education history under oath in numerous cases brought by the Monterey County District Attorney’s Office, some of which resulted in criminal convictions. But reporters who contacted Antioch University to confirm her education history were told she never graduated from the school.

Reade also misconstrued the nature of her work in Sen. Biden’s office, according to one report, testifying under oath that she worked as a legislative assistant when she was actually a staff assistant, according to employment records obtained by the New York Times. And in one 2018 case, Reade said she had not taken the California bar exam, even though blog posts written by her several years earlier said she twice failed the exam.

Prosecutors are now going through cases dating back several years to see if Reade intentionally lied while on the stand, according to POLITICO. An official with the prosecutor’s office said it’s unclear how many cases Reade testified in because the county doesn’t have a way to sort through cases digitally.

“We have no database or search engine to use to determine how many cases she testified,” Berkley Brannon, the county’s chief assistant district attorney, told POLITICO.

If Reade is found to have exaggerated her qualifications on the stand, it could be grounds for a reversal of some criminal convictions, Sacramento criminal defense attorney Mark Reichel told the New York Times last week.

“An expert can only testify in certain circumstances,” Mark said. “One of them is that they have expertise above the regular person. The jury is entitled to hear your qualifications.”