The Trump administration is leading a double life when it comes to competition in the market for content that arrives via the internet.
The Department of Justice on Monday sued AT&T and Time Warner to block a proposed merger between the two that the government charges would lessen competition in violation of federal law.
The lawsuit upends a transaction that the companies announced a year ago, when AT&T agreed to pay about $85 billion for Time Warner, which owns CNN, HBO, Turner Sports and other networks.
Jekyll and Hyde?
DOJ contends that the deal, which is riding on regulatory approval, would set back competition and lead to higher prices for consumers.
A day later, the Federal Communications Commission voted to roll back rules that prevent cable companies and other internet service providers from blocking or slowing websites or social networks that do not pay for priority.
“We have one government, but two separate agencies with opposing views,” Spencer Kurn, an analyst at New Street Research, told the Times. “You’ve got one agency saying that marrying content and distribution results in too much market power, and another agency saying there’s no problem with a distributor favoring their content over someone else’s.”
Net neutrality, as the rules are known, prevents ISPs from prioritizing content from companies they own. The FCC chairman opposes the rules, saying they slow development of broadband networks by lessening the incentive of the companies that own them to add connections.
But the arguments advanced by DOJ in court seem to validate the concerns that net neutrality reflects. A combination of AT&T and Time Warner (the owner of CNN and HBO, among other networks) would give the combined company the ability to throttle programs that someone else owns, leading to higher prices for consumers, DOJ charges.
“After the merger, the merged company would have the power to make its video distributor rivals less competitive by raising their costs, resulting in even higher monthly bills for American families,” the government told the court.
That sounds like a defense of net neutrality.
The rollback at the FCC is a win for AT&T, which is vowing to fight the move by DOJ to block the company’s deal for Time Warner.
In August 2013, an African-American couple stood outside their home on Chicago’s South Side when officers from the Chicago Police Department (CPD) arrived and began towing their car. The couple asked the police if they could remove personal items from the car before it was towed. One of the officers hit the female member of the couple, who happened to be pregnant and suffered a miscarriage.
The incident, which ended in a settlement with the city, is one of 19 cases charging abuse by the CPD that Chicago settled in the past two years and among a series of wrongs cited by a coalition of black and Latino residents who filed a lawsuit on Wednesday accusing the CPD of using excessive force in violation of their civil rights.
The class action aims to build on a civil rights investigation by the Obama administration, which found a pattern of misconduct and unconstitutional force by the CPD. However since then both Mayor Rahm Emanuel and Attorney General Jeff Sessions have backed away from the idea of court oversight.
“We’re asking the federal court to oversee the police department and to appoint a monitoring team that’s going to oversee enforce a process to bring about the changes that are necessary to redress years of unchecked police abuse and a code of silence,” Craig Futterman, attorney for the plaintiffs and a professor of law the University of Chicago, told reporters. “It’s a sad and scary day when we have our federal government abdicating its responsibility to enforce our nation’s most fundamental laws.”
The class action asks the court to appoint monitors to oversee efforts by the city to change its policing and end a culture that allows police to conceal wrongdoing by their colleagues.
A history of abuses
In support of their accusations, the coalition, which also includes community groups and nonprofits such as Black Lives Matter, documents a history of abuse by police against Chicago’s black and Latino residents.
Over a period of five years that ended in June 2015, black people accounted for 80 percent of the 282 people shot by the CPD despite black people making up just a third of the city’s population, the plaintiffs said in court papers. In the last three of those years, three-fourths of people shocked by police with a Taser gun were black, according to the plaintiffs, who also document a series of abuses that range from use by police of racially charged language to punching people, clubbing them with batons, and slamming them to the ground.
The city says it agrees that reforms are needed but blames the Trump administration for failing to pursue a consent decree. “The substance of the reforms that we are all trying to achieve is not really in question,” Edward Siskel, Chicago’s top lawyer, told the Times. “It is matters of process that we are discussing.”
If the city wants to negotiate a consent decree, “we can do it tomorrow,” Futterman responded.
Besides failing to train police properly, agencies charged with overseeing the CPD frequently fail to determine whether officers’ accounts of encounters with residents match evidence, the plaintiffs contend. Such failures lead police to conclude they can operate with impunity, according to the plaintiffs, who assert that the CPD has proved to be incapable of policing itself.
At least two New York City police officers who have ties to the arrest of Eric Garner testified before a federal grand jury in Brooklyn on March 22, suggesting that the Justice Department is continuing to examine whether to charge Officer Daniel Pantaleo with violating Garner’s civil rights during the latter’s arrest on July 17, 2014 for allegedly selling loose cigarettes.
Garner, a 43-year-old father of six, died as the result of a chokehold applied by Pantaleo, the city’s medical examiner determined. DOJ began its investigation after a grand jury on Staten Island declined to indict the officer, touching off protests nationwide.
In December, Attorney General Loretta Lynch moved the probe to Washington from Brooklyn following a disagreement among prosecutors whether they could prove in court the use of force by Pantaleo was unreasonable based on the circumstances.
The status of the inquiry later fell into question when Jeff Sessions succeeded Lynch. Sessions has criticized actions by the Obama administration to end police abuses in minority communities as hostile to law enforcement. On Monday, DOJ asked a federal judge in Baltimore to delay approval of reforms of policing Lynch had negotiated in that city.
According to the Daily News, Sgt. Dhanan Saminath, who arrived at the scene of Garner’s arrest after Pantaleo called for backup, told grand jurors he summoned emergency medical service because Garner was having difficulty breathing. Deputy Inspector Joseph Veneziano, commanding officer of the 120th precinct at the time, reportedly also testified.
Separately, a state appeals court in Manhattan ruled on March 30 that the city cannot release records concerning complaints filed against Pantaleo with the Civilian Complaint Review Board over the decade that preceded Garner’s death, citing risks to the safety of the officer and his family. Justice John Sweeny Jr., writing on behalf of four of his colleagues, said:
“Here, in light of the widespread notoriety of Mr. Garner’s death and Officer Pantaleo’s role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD’s Threat Assessment Unit to order around-the-clock protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo’s safety nonetheless demonstrate that disclosure carries a ‘substantial and realistic potential’ for harm, particularly in the form of ‘harassment and reprisals,’ and that nondisclosure of the requested records under [the statute] is warranted.” [citations omitted]
Last summer, the NYPD stopped sharing information about personnel actions involving officers, citing the state’s civil rights law, which permits release of such records by a judge.
The ruling by the Appellate Division overturned a decision by a trial judge who had ordered the release of a summary of the proceedings and came a week after the news site ThinkProgress published at least some of that information, which the site said it had received from an anonymous source who worked for the CCRB.
The information shows Pantaleo, who remains on desk duty, to be the subject of 14 allegations that he had abused his authority, four of which the CCRB substantiated. According to ThinkProgress, about 2% of the NYPD’s roughly 34,500 officers have two or more complaints with substantiated allegations.
Last August, the Justice Department announced the results of a 14-month investigation into the Baltimore Police Department. The review was triggered by weeks of protests in the city following the death of Freddie Gray, a 25-year-old black man who died of a spinal cord injury while in the custody of police.
In a 163-page report, DOJ found that for years, police in Baltimore engaged in a pattern of “aggressive use of stops, frisks, and misdemeanor arrests” in poor, urban neighborhoods with mostly African-American residents.
Police routinely stopped and detained people on the streets without reasonable suspicion that they were involved in criminal activity. They detained and questioned people who sat, stood or walked “in public areas, even where officers have no basis to suspect them of wrongdoing.” According to the report:
“During a ride-along with Justice Department officials, a BPD sergeant instructed a patrol officer to stop a group of young African-American males on a street corner, question them, and order them to disperse. When the patrol officer protested that he had no valid reason to stop the group, the sergeant replied ‘Then make something up.’ This incident is far from anomalous.”
In January, the city and DOJ filed with a federal judge in Baltimore a series of reforms that call for officers to try to resolve incidents without force when possible and to use force that is in proportion to the threat. “I would not say the consent decree is not needed,” said Catherine Pugh, Baltimore’s mayor, a month earlier.
Jeff Sessions, who in February became attorney general, apparently disagrees. On Monday, DOJ asked the court to delay implementation of the consent decree for three months to allow the department and the city to revisit the terms of the agreement.
In court papers, DOJ cited “alarming spikes in violent crime” in Baltimore and cities across the country, as well as an order issued Feb. 9 by the White House that directs the government “to prioritize crime reduction.”
The filing comes as part of a review by DOJ of a series of a series of agreements negotiated by the Obama administration that, as the Times notes, “aim to improve relations between the police and the communities they serve.” It also reflects a view by Sessions that such agreements undermine police and contribute to an increase in crime. As Sessions said in a speech in February:
“Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors. Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before.”
Officials in Baltimore “strongly oppose” DOJ’s request for delay, Mayor Pugh said on Monday, noting that “reforming our police department is long overdue.” The next day, Pugh added that the city is “ready to move ahead” to finalize the consent decree.
Pugh noted that while the city is already equipping police with body cameras and working to improve relations with the community, “we also know that inside of the consent decree… are some things that need to be done,” adding the DOJ’s report “indicates that there is a great need.”
Kevin Davis, Baltimore’s police commissioner, told reporters he is “disappointed” with DOJ’s request for delay. “What a consent decree does is bind the police commissioner… it binds the mayor… to getting those reforms enacted under a timeline that’s not necessarily our own,” he said.
Why must the city be bound? In its report, DOJ cited an incident from 2010, when two police officers approached a group of people who stood on a sidewalk in a residential neighborhood and ordered them to disperse. Brian, a juvenile, and his sister, walked onto the steps of their home, remaining outside.
When one of the officers warned the siblings about loitering, the sister informed them, yelling and cursing, that she and her brother lived in the house. The officers neither disputed her claim nor sought to verify it.
But the officers did continue to warn the sister to leave (to go where?) and to stop causing a disturbance. Eventually, they arrested her for so-called non-compliance. When one of the officers walked up the stoop to arrest her, Brian tried to block the officer, who began a struggle with him.
According to witnesses whose accounts the police summarized in their reports, the officer punched Brian in the face. The officer also used pepper spray against both siblings and arrested them for loitering, resisting arrest and assaulting a police officer.
“All of the officer’s uses of force against the siblings, who were standing on or in front of their own property, were unreasonable,” DOJ wrote. Brian and his sister “were placed into the criminal justice system for standing on their own steps.”
The investigation into the death of Eric Garner at the hands of the NYPD will pass to Jeff Sessions, the incoming attorney general who has criticized efforts by the Justice Department to end discriminatory policing and the use of excessive force in poor, mainly black communities.
Attorney General Loretta Lynch, who is overseeing the probe, is expected to step down before prosecutors reach a resolution in the case, The Washington Post reported Friday.
In December, Lynch shifted the investigation to Washington from Brooklyn following a disagreement between prosecutors there and at headquarters, with prosecutors in Brooklyn doubting whether they could prove in court that the use of force by Daniel Pantaleo, the NYPD officer whose chokehold of Garner, a black man, led to the latter’s death on Staten Island almost three years ago, was unreasonable based on the circumstances. Their colleagues in Washington reportedly thought the record contained enough evidence to proceed.
At a hearing of the Senate Judiciary Committee in November 2015, Sessions, a senior member of the panel, called the Black Lives Matter movement, which campaigns to end anti-black racism and police abuses, “really radical” and said that “police officers all over America are concerned” about legal actions by the Justice Department against police departments and officers.
As attorney general, Sessions will inherit DOJ’s oversight of agreements with the cities of Chicago, Cleveland and Baltimore that commit police in each of those cities to refrain from unconstitutional stops, searches and arrests of African-Americans, as well as from using excessive force. In an introduction to a paper published in 2008 by the Alabama Police Institute, Sessions denounced the use of such agreements as “an end run around the democratic process.”
According to Ames Grawert, counsel for the Brennan Center for Justice, Sessions’ comments “call into question” whether he would continue the department’s probes intro police practices.
Sessions also will be charged with implementing the criminal justice agenda of the president-elect, who campaigned on a platform of law and order. Though Sessions pushed for passage of a 2010 law that reduced the disparity in sentences between crimes for crack and powder cocaine, he has opposed reform of federal sentencing laws despite bipartisan support for ending mass incarceration without compromising public safety.
Pantaleo and his partner arrested Garner, a father of six, for allegedly selling untaxed cigarettes. Video from a cellphone camera recorded the encounter, which ended with Garner telling the officers 11 times he could not breathe as they pinned him to the ground.
In a letter last Tuesday to Lynch, Rep. Hakeem Jeffries of Brooklyn and five of his fellow New York-area lawmakers called on the attorney general to prosecute Pantaleo. “In approximately two weeks, there will be a new DOJ less committed to civil rights enforcement,” they wrote. “Consequently, the investigation into Mr. Gamer’s death may itself be suffocated and die.”
Two years ago this December, then Attorney General Eric Holder announced that the Department of Justice would proceed with a federal civil rights investigation into the death of Eric Garner, an unarmed resident of Staten Island who died five months earlier after an NYPD officer put him in a chokehold while trying to arrest Garner for allegedly selling loose cigarettes.
DOJ’s investigation would be handled by prosecutors in Brooklyn and Washington, Holder said. In civil rights cases, U.S. attorneys’ offices such as the one in Brooklyn and their counterparts at the Civil Rights Division in Washington work as partners. But last Monday, the department shifted the investigation to D.C. exclusively, taking the Brooklyn prosecutors off the case.
Though federal investigators convened a grand jury in Brooklyn, the investigation has dragged on, reportedly because of a disagreement among prosecutors there and in D.C, with the group in Brooklyn doubting whether they can prove in court that force used by Daniel Pantaleo, the officer who applied the chokehold to Garner, was unreasonable based on the circumstances. Their colleagues in Washington reportedly think they have enough evidence to proceed.
“It is taking quite a bit of time,” William Yeomans, a former acting assistant attorney general for civil rights, told the Times. “I’d almost say it’s been longer than expected, especially since a video exists.”
The video, of course, is the footage that shows Garner’s death after being subdued by Pantaleo. The city’s medical examiner ruled the death a homicide.
Holder convened the investigation within hours of a decision by a Staten Island grand jury not to charge Pantaleo. (The Staten Island grand jury considered whether Pantaleo’s conduct violated state law.)
The grand jury’s failure to charge Pantaleo sparked sparked protests world-wide. Garner’s last words, “I can’t breathe,” which he repeated 11 times, have become a rallying cry against mistreatment of Black people by the state.
“This is a small step forward,” Erica Garner, the victim’s daughter, said in a statement following the decision by DOJ to move the investigation to headquarters. Attorney General Loretta Lynch, who succeeded Holder, is a former head of the U.S. attorney’s office in Brooklyn.
The city agreed last year to pay Garner’s family $5.9 million to settle a claim of wrongful death in connection with his killing. The state’s highest court declined to order the release of transcripts from the grand jury that might have shed light on its deliberations. Pantaleo remains on desk duty and is likely to be disciplined by the department following the federal probe.
The NYPD in 1993 banned the use of chokeholds after the maneuver was implicated in a series of deaths. For his part, Pantaleo told the grand jury that he meant merely to tip Garner so that Garner would fall to the ground. Upon hearing Garner say he could not breathe, Pantaleo testified that he sought to separate himself from Garner as quickly as possible. But in the video, Pantaleo seems to continue to restrain Garner by the neck.
Now it falls to prosecutors in Washington to determine whether the NYPD violated Garner’s civil rights. What Garner says, as much as what the video shows, commands our attention.
“I can’t breathe,” he told the officers who pinned him to the pavement. “I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.”
The Justice Department has tightened restrictions for tracking cellphone signals in a move that officials say will improve transparency and protect the public from unwarranted invasions of privacy.
Henceforth the FBI and federal law-enforcement agencies will need a warrant supported by probable cause before using a so-called cell-site simulator, which can impersonate a cellphone tower by sending out signals that induce phones to respond with identifying information.
The devices, which are known variously as stingrays, dirtboxes or IMSI catchers (for International Mobile Subscriber Identity), are used widely for surveillance but have proved to be controversial because of their sweep and the secrecy that shrouds their use. Agents deploy the devices from cars and planes, which enable scanning across larger areas.
“Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases,” Deputy Attorney General Sally Quillan Yates said Thursday in a statement announcing the change. “This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties.”
The pivot by DOJ represents a departure from past practice, when law enforcement personnel had to certify merely that use of a cell-site simulator was relevant to an ongoing criminal investigation.
Under the revised guidelines, agents may not configure simulators to collect the contents of communications, including emails and text messages. Agents also must inform judges when applying for warrants that use of the device will capture information from cellphones in the vicinity that are not subject to the investigation, and that the simulator may disrupt service temporarily for all cellphones within reach of its signal. Officials also must detail to the court how they plan to delete data not associated with the device being targeted.
As is the case under the Fourth Amendment generally, federal officials can use a simulator without first obtaining a warrant in the event of so-called exigent circumstances or when the law does not require a warrant, in which instance agents must first obtain the OK of officials within DOJ.
The Guardian reported Friday that public defenders in Baltimore are examining more than 2,000 cases in which police used stingrays to gather evidence on suspects secretly. Prosecutors are obligated to disclose evidence against criminal defendants in the discovery phase of a criminal trial.
Protestors in Times Square (Photo by Brian Browdie)
About 50 yards from where hundreds of people massed Wednesday evening in Times Square to protest the decision by a grand jury not to indict a police officer in the death of Eric Garner, about two dozen tourists gazed up at themselves on a video display sponsored by Revlon.
The tourists chatted away in languages other than English and snapped photos of themselves snapping photos of themselves on the giant display that looms above Broadway.
Whatever selfies they snapped at street level may reveal in the background a sea of signs held aloft by protestors who had come to register the injustice of the chokehold death of a black man by a police officer on Staten Island last summer for allegedly selling loose cigarettes. As transgressions go, Garner’s offense roughly rivaled staring at oneself on a video display in the threat it posed to the general welfare.
(Photo by Brian Browdie)
“This is a clear-cut case of death by broken windows policing,” Stan Williams, a labor organizer from Brooklyn, told a reporter. “Was he selling loosies that day? If he was, take him to jail.”
As if the death of Garner, 43, who stood six feet three and whom locals described as a gentle giant, were not tragedy enough, the death of another black man at the hands of police suggests that America itself suffers from an illness of injustice that undermines the ideal that draws people here from around the world to snap selfies and pursue their dreams.
Protestors stage a die-in at Grand Central Terminal (Photo by Brian Browdie)
On Wednesday, beneath the LED displays for Dunkin Donuts, Stella Artois and a multitude of other products that illuminate Times Square, a series of signs penned in Sharpie spoke of a reality that has characterized America for far too long. “We want an indictment,” read one. “I can’t breathe,” read another, quoting Garner’s words as he lay dying.
(Photo by Brian Browdie)
“Mr. Garner’s death is one of several recent incidents across the country that have tested the sense of trust that must exist between law enforcement and the communities they are charged to serve and protect,” Attorney General Eric Holder said in a statement Wednesday announcing that the Department of Justice will proceed with a federal civil rights investigation.
“This is not a New York issue or a Ferguson issue alone,” Holder added. He’s right of course. As President Obama said Wednesday, “This is an American problem.”
“We can’t imagine we’re the city on the hill or a country where equality reigns when people are being brutalized,” said Williams. As another protestor remarked to a reporter from Europe 1 radio: “I just feel like everyone should give a shit about this.”
