Why would American Airlines be at fault and not the arresting office? Context: SOURCE Michael Lowe filed his lawsuit on Monday in Tarrant County, Texas, after he says he was arrested last July for a crime he didn't commit. According to the lawsuit, a duty-free shop at Dallas-Fort Worth International Airport in Tarrant County was burglarized in May 2020. Surveillance footage of the incident showed the culprit was a passenger of American flight 2248, and investigators obtained a search warrant ordering the airline to produce &quot;any and all recorded travel data for all individuals&quot; on that flight, the suit stated. Instead, Lowe said, American only produced identification for one passenger -- him. Why would the airline have any responsibility? Let us assume that the evidence excludes Mr. Lowe. I realize that they the airline has deep pockets / insurance so from that standpoint they are &quot;ripe&quot; for the picking. That being said, they did not arrest Mr. Lowe and the video evidence should have immediately exonerated Lowe. IANAL.
The problem was that the arresting officer and the investigating officer were two different people. After American airlines misidentified Mr Lowe as the suspect a warrant was issued for an arrest, and it wasn't until about a year later when officers in New Mexico ran his name and found that he had a warrant that they detained him. So their actions were perfectly proper. The length of his detention was primarily because the USA functions as separate legal jurisdictions, so you can be held for some time on a warrant for another state. Possibly the investigating officer should not have relied on American Airlines identification of the suspect. However, Mr. Lowe would have to overcome the qualified immunity bar to sue the PD. The case against the airline is that of negligence: they had no duty to single out Mr. Lowe; they could just have turned over all the data, as requested. Having chosen effectively to carry out their own investigation, the claim is that they owed a common law duty of care to Mr. Lowe to do it competently. It's clear that misidentifying Mr. Lowe as the suspect was likely to do him harm, so it's a reasonable foundation for a claim. More than that, we will have to see.
Disclaimer: there are whole sections of criminal law courses that deal with this issue and the various laws and precedents that have shaped american jurisprudence relating to right of privacy, expectation of privacy, and search and seizure. So, this is more of a primer than a comprehensive answer. That being said, the Fourth Amendment, which protects the people from unreasonable search and seizure by the government, dictates that there must be probable cause for a search warrant to issue. However, in addition to the restrictions that are imposed by the Fourth Amendment, several states’ constitutions, as well as a variety of state and federal statutes, rules of procedure, and law court rulings interpret these edicts further, limiting the process for obtaining a search warrant (a state can add additional safeguards, or impose more stringent requirements, but not less than the 4th amendment demands). On the federal level alone, the laws on search and seizure are also limited in scope by sections appearing in Title 18, Part II, Chapter 205 – Searches and Seizures. 18 U.S.C. § 3101-18. Federal warrants are further governed by Rule 41 of the Federal Rules of Criminal Procedure. Only Judges and magistrates may issue search warrants. To obtain a warrant, law enforcement officers must show that there is probable cause (i.e. grounds) that search is legally justified. Officers must support this showing with sworn statements (affidavits) under oath, and must describe in particularity the place they will search and the items they will seize. Judges must consider the totality of the circumstances when deciding whether or not to issue the warrant. When issuing a search warrant, the judge may restrict how and when the police conduct the search. Police officers (a broad term I'm using for ease of discussion to include all manner of state and federal investigators operating under color of law) seeking a warrant do not need to show that the people being searched (or those whose property is being searched) actually, or even probably, committed the crime(s) in question. Rather, officers merely need to show probable cause exists to show that the evidence sought-after is likely there and upon discovery may implicate some person or persons in criminal activity (that has been committed). A landmark case that resulted in some reforms is Zurcher v. Stanford Daily, 436 U.S. 547 (1978), in which the Supreme Court opined that a search conducted by the police at a student newspaper, where the newspaper was not implicated or connected to any criminal activity, was a legal search under the Fourth Amendment, because the police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers. Afterward, however, some jurisdictions responded by passing laws restricting or forbidding these kinds of searches - so again, what stands as acceptable procedure is not static. While you may not often hear of requests for warrants being denied, it does happen if there is insufficient PC pled in the affidavit; General unawareness is not surprising as it is not something often made public, although there are instances. Most officers know when they have enough for a warrant and know how to adequately swear out an affidavit so that PC is present enough for the judge to sign the warrant in good faith. However, some Judges are more stringent and demanding than others with regard to how the PC was obtained,the scope of the warrant under those facts, etc. Certainly, not every application is granted. Cornell has a great primer of this issue and you can find article when application for a warrant was denied...especially in higher profile investigations. https://www.law.cornell.edu/wex/search_warrant
Yes The airline is entitled to recover what the passenger cost it - that’s how damages work. If it’s successful in its legal pursuit of the passenger it’s also entitled to legal costs (generally, legal costs are complicated). This can either be the actual amount or a genuine pre-estimate of that amount in the contract, called a liquidated damages amount. Liquidated damages do not have to be accurate in the particular circumstances but they must be a reasonable expectation of what an average breach would cost the airline. Too large and they risk being a penalty and unenforceable - only governments can punish.
Any compensation would be under the guise of EU regulation EC No 261/2004. Under the assumption that they claim the cancellation is due to Extraordinary Circumstances, then "compensation is not due if the carrier can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken". Non-exhaustive examples of such circumstances are "air traffic management decisions, political instability, adverse weather conditions and security risks". Lightening is clearly such a circumstance, and a strike probably is (since there is no legal requirement to always accede to union demands). Legal recourse is via the relevant national authority, apparently LBA in this case. They indicate that they will make an initial assessment. The ultimate recourse is a lawsuit against the airline.
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
Revised for clarity in light of comments State and local police can arrest anyone who they have probable cause to believe is breaking state or local law. Like all LEOs, Federal LEOs can break some state and local laws while enforcing Federal law. When they grab someone off the street and hold them in a cell, they are detaining them, not kidnapping them, and so on. However, to avoid arrest, the Feds have to identify themselves. That's because state and local LEO who know they are dealing with Feds on federal business no longer have probable cause to believe a crime is being committed. State and local police can arrest Federal LEOs who they: a) have probable cause to believe are breaking state or local; and, b) have no reason to believe are Feds enforcing Federal law. In other words: Any Fed who refuses to identify herself to a local LEO can be arrested if there is probable cause. State and local police cannot, however, arrest Federal LEOs just because they are not wearing insignias. That is because: a) there are no federal statutes requiring federal LEOs to identify themselves; b) the Supremacy Clause says federal law takes precedence over state and local law that conflict with it; c) at least in Portland, the feds were not operating under any sort of formal agreement with Portland or Oregon officials that required them to have identification. While it is hard to prove a negative, the question of whether Federal LEOs are required to identify themselves has been looked at recently by reputable sources. They all agree there is no such law. For example, the answer from Lawfare: Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information. The article points out that the two main types of cases involving police identifying themselves really don't apply: police who are working undercover, notably in sting operations, and police searching and seizing property. They go on to point out: Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York City’s Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions “their name, rank, command, and shield number.” (Also, many departments have policies that generally require officers to identify themselves, although with exceptions. You can see examples of the policies here.) Again, these local laws do not apply to Feds because of the Supremacy Clause. NOTE: As several of the news stories note, the lack of identification will make it very hard to hold Federal LEOs accountable for their actions. Accountability requires identity.
In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order.
The best course of action for Barr would be to file an objection to the subpoena in the proper court (probably the U.S. District Court for the District of Columbia) under or by analogy to Federal Rule of Civil Procedure 45(d) (which governs disputes over subpoenas in civil cases in the federal courts), if he thinks that there are matters he cannot lawfully divulge or thinks it is improper to divulge even if they are not privileged, and to let a judge decide. Generally speaking, in a civil action, you can only object to a subpoena by following this process and Congress has increasingly used the civil lawsuit discovery process as a benchmark. Failure to file an objection with the proper court, or at least in a response to Congress by the date required in the subpoena to produce the materials, will generally constitute a waiver of the objections that might otherwise have been asserted to the subpoena. Simply not responding without explanation by the due date would be a pretty clear case of Contempt of Congress which is the basis for both a civil action and criminal contempt charges. For example, in the Lynch case, cited below, the Court stated with respect to information that was withheld without any claim of privilege: Failure to provide any grounds for withholding particular records does not comply with the order or enable the Court to resolve defendant’s privilege claims as to those documents. Accordingly, defendant must produce the material withheld without any proffered justification. This said, in any dispute between Congress and the Executive Branch there is always some uncertainty, and the courts strongly favor negotiation and conferral between the parties before bringing these matters to a head. A general discussion of Congressional subpoenas can be found here, recognizing, however, that while there are a variety of grounds for redaction asserted in the Mueller report case, "Executive Privilege" is not among them and so the special considerations that apply to an assertion of executive privilege do not apply. The authority of the judicial branch to resolve these issues has been upheld, for example, in the cases of United States v. Nixon (U.S. 1974) and Committee on Oversight and Government Reform v. Lynch (D. D.C 2016) (both of which involved the more difficult scenario of an assertion of executive privilege in addition to the more ordinary assertions of privileges like the grand jury privilege). Not infrequently, the judge will review the unredacted material in camera (i.e. privately in chambers without showing it to the requesting party) to determine if the claim of privilege or other basis for redaction is really valid (e.g. maybe something that was redacted under the label grand jury testimony is not, in fact, grand jury testimony). But, there is case law to support the notion that Congress would have to demonstrate some specific reason why it doubts the accuracy of the assertions of the executive branch regarding redactions in this particular case to make it necessary for there to be an in camera review. In the Lynch case (which is a non-precedential opinion itself) the Court said: As for whether the redactions are what they purport to be, the Court notes that counsel for even the most disputatious parties are often called upon to trust each other, and that the judiciary relies regularly on declarations by the executive branch that matters redacted from FOIA productions are what they are described to be in the Vaughn index. See Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (holding that district court had not abused its discretion by relying on agency’s Vaughn index and declaration in determining whether a disputed document contained segregable portions); Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may rely on the description of the withheld records set forth in the Vaughn index and the agency’s declaration that it released all segregable information.”). The Court has been provided with no reason to believe that its assistance is needed to verify for counsel for one branch of government assertions made in pleadings by an officer of the court representing another, equal branch of government. If in the end, a neutral is required to read each individual redaction and confirm that what the Department claims is simply a name or a telephone number is in fact a name or a telephone number, the parties can arrange for that on their own. These discretionary issues are likely to be influenced by the partisan leanings of the particular judges involved. Another question is to whom a subpoena could be directed. While attorney-general Barr is one possible person to whom it could be directed, Mueller himself is another possible person to whom a subpoena could be directed and that might lead to a more tractable counter-party in the lawsuit and might simplify some of the conflicts of interest present in a subpoena of the attorney-general himself that in criminal contempt cases is enforceable by his subordinates, i.e. U.S. attorneys, who are required by law to bring such charges.