The FBI’s Searches of Black Lives Matter Activists: A Budding Fourth Amendment Issue
Following the murder of George Floyd in 2020, many activists initiated protests of all forms to voice their discontent with the American government. Social media emerged as one prominent medium for activists to advertise their beliefs and organize protests—predominantly under the umbrella of the Black Lives Matter (BLM) movement. However, law enforcement, especially the Federal Bureau of Investigation (FBI), has utilized the very social media platforms that BLM activists make use of in an effort to connect them to terrorist activity.
One student at Tennessee Tech University reported that, upon posting on their social media that they would offer transportation to a BLM protest, the FBI tracked them down for questioning regarding “terrorist organizations trying to come into the peaceful protests in Cookeville.” [1] However, based on the subject matter of these conversations, the student indicated that the FBI discussed information that was only available on their private Facebook page. [2] The FBI accessing their private social media information is a decisive overstep of the protections of the Fourth Amendment and captures the FBI’s propensity for unlawful searches. Furthermore, analyses of individuals arrested at BLM protests reveal that the majority of BLM activists are not “leftist radicals” and hold no connection with terrorist activities, meaning the FBI’s searches are motivated by conjecture rather than evidence of an established pattern. [3] To ensure that law enforcement agencies do not continue violating the rights of Black activists like this student, the Supreme Court should uphold the Fourth Amendment and proscribe the groundless searches of citizens who express discontent against the government.
In order to understand the extent of these civil rights violations, it is important to analyze the protections citizens have at their disposal. At its core, the Fourth Amendment ensures citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” [4] This Amendment solidifies citizens’ right to a certain level of privacy; it serves as a legal barrier between the government and the citizenry, which protects individuals from government overreach. However, this barrier is ripped down every time government entities such as the FBI intervene in citizens’ lives without an evidentiary basis for doing so. Consequently, it is integral to ensure that law enforcement agencies like the FBI do not employ unnecessary searches that vehemently go against this sense of security.
The extent to which law enforcement agencies can infringe upon this privacy is delineated in Terry v. Ohio (1968), which draws upon the Fourth Amendment to discuss reasonable suspicion as a basis for searches. In this case, John W. Terry was believed to be engaging in criminal activity and was stopped and frisked by a police officer. The police officer found Terry in possession of a weapon and he was subsequently brought up on charges. Terry argued that the search and seizure violated the Fourth Amendment; however, the Court rejected this argument and stated that "a reasonably prudent man would have been warranted in believing [Terry] was armed,” meaning the officer was within his rights to search him. [5] This case set the standard of reasonable suspicion for search and seizure cases. Yet, when applying this legal standard of reasonableness to the student’s case, there was no evidence that a reasonable person could draw on to warrant their connection to terrorism. Involvement with BLM alone does not automatically equate to terrorism; the FBI’s assumption that it does indicates a misinterpretation of the core of the BLM movement. [6] In a working democracy, it is essential to ensure that law enforcement’s actions are restricted by the standard of reasonable suspicion—else, it would be possible for agencies to act on their whims.
A key aspect of the student’s search is that it was primarily conducted through social media. Carpenter v. U.S (2018) gives insight into how the Supreme Court navigates Fourth Amendment cases involving technology in its discussion of the warrantless tapping of cell phones. In Carpenter, Timothy Carpenter and his accomplices were involved in a series of armed robberies. When one of Carpenter’s accomplices turned him in, the FBI used Carpenter’s cell phone to obtain evidence that connected him to the crime and subsequently charge him. Carpenter argued that the FBI didn’t have probable cause to obtain those phone records, then claimed that the records should be thrown out because their seizure violated the Fourth Amendment. [7] The Court ruled in favor of Carpenter and stated that the Fourth Amendment also applied to “reasonable expectations of privacy” that protected citizens from “intrusive” searches that have no probable cause. [8] Using this standard, the student’s search constitutes an “intrusive” intervention; the post that incited the FBI’s attention merely involved her offering transportation to those in need. There was no suggestion of terrorist activity, either through her actions or support of BLM, which would warrant the FBI’s search. In Carpenter v. U.S. (2018), law enforcement had the confession of one of Carpenter’s accomplices stating Carpenter had committed the crimes. However, in the student’s case, there was nothing to corroborate her involvement with terrorist activity except the BLM-related post she shared. [9] Therefore, given that the student’s search involved even less evidence than Carpenter’s, it must be ruled as unconstitutional as well.
While the reasonableness standard is integral to validating searches, there are still some methods which law enforcement may use to get around this standard. In Justice Potter Stewart’s majority opinion in Katz v. United States (1967), a case involving unreasonable searches in regards to wiretapping technology, he confirmed that there were “a few specifically established and well delineated exceptions” to the reasonableness standard. [10] One such exception validated by the court is community caretaking, which was established in Cady v. Dombrowski (1973). In Cady, Chicago police officer Dombrowski was involved in a car accident and arrested for drunk driving. Law enforcement believed he was in possession of a weapon and conducted a search of his car without a warrant. Dombrowski argued that the search of the car was unconstitutional and violated the Fourth Amendment, yet the Court ruled that the search did not violate the Fourth Amendment and was an exception to the reasonableness standard because it was necessary for them to “protect the public from a weapon's possibly falling into improper hands.” [11] With this ruling, law enforcement was granted the ability to search if they believe their actions are protecting the public, or consistent with “community caretaking.” [12]
Community caretaking as an exception to the reasonableness standard would ordinarily function to validate the search of the student’s social media because the FBI would be protecting the public from potential terrorist activity. However, this is challenged by the fact that the FBI had no actual evidence to believe that the student was associated with terrorist activity. In Cady, Dombrowski was a police officer, so the arresting officer had knowledge of the fact that “Chicago police officers were required to carry their service revolvers at all times.” Even if Dombrowski didn’t have his weapon upon arrest, the officer had a compelling reason to believe a weapon that might endanger the community was in the car. [13] Therefore, this search was important to ensure a weapon didn’t harm anyone, rendering it consistent with community caretaking. Once again, in the student’s case, there was no clear threat to the community that would justify the FBI’s search.
Thus, the student’s search was less in line with community caretaking and more in line with a pattern of surveilling Black activists. When the FBI targets BLM activists both on an individual scale and as a part of a group, they are unjustifiably designating them as dangerous and necessary to watch; this segments BLM activists from the larger population and overlooks the fact that they are a part of the very community that law enforcement should be protecting. This further challenges the potential application of the community caretaking standard, as the FBI is harming rather than taking care of the community.
Throughout the course of its extensive history of prejudice, the United States has robbed many Black people of their constitutionally guaranteed civil rights; in allowing the FBI to continue to unconstitutionally search BLM activists, the courts are enabling the continued removal of Black people’s constitutional rights. This reality is fundamentally at-odds with the nation’s Constitution, which explicitly ensures that all citizens must have freedom from unreasonable searches. Indeed, the invasive search that the student experienced at the hands of the FBI illustrates that current laws are not effective in securing freedom from unreasonable searches, as the student exhibited no behavior that would constitute reasonable suspicion or a threat to the community. Ultimately, the FBI’s tracking of the student not only violates the reasonableness standard but also the community caretaking doctrine, meaning it cannot be validated by any existing interpretations of the Fourth Amendment. Thus, it is clear that a stricter enforcement of the Fourth Amendment’s principles is necessary in order to protect members of society who are most frequently discriminated against and disenfranchised by this nation’s government.
Edited by Karuna Vikram
Sources:
[1] Chris Brooks, After Barr Ordered FBI to “Identify Criminal Organizers,” Activists Were intimidated At Home and Work, The Intercept (June 12, 2020), online at https://theintercept.com/2020/06/12/fbi-jttf-protests-activists-cookeville-tennessee/ (visited October 22, 2021).
[2] Id.
[3] Alanna Durkin Richer, Colleen Long, and Michael Balsamo, AP Finds More Arrested in Protests Aren’t Leftist Radicals, AP News (October 20, 2020), online at https://apnews.com/article/virus-outbreak-race-and-ethnicity-suburbs-health-racial-injustice-7edf9027af1878283f3818d96c54f748 (visited October 22, 2021).
[4] U.S. Constitution, amend. 4.
[5] Terry v. Ohio, 392 U.S. 1 (1968).
[6] Ryan J. Foley, Police Guide that Calls BLM a Terrorist Group Draws Outrage, AP News (December 2, 2020), online at https://apnews.com/article/police-guide-calls-blm-terrorist-group-8dc0afce2ce6b60dbaa0d1d9c53ce1e3 (visited October 22, 2021).
[7] Carpenter v. United States, 585 U.S. _ (2018).
[8] Id.
[9] Brooks, “After Barr Ordered FBI.”
[10] Katz v. United States, 389 U.S. 347 (1967).
[11] Cady v. Dombrowski, 413 U.S. 433 1973).
[12] Debra Livingston, "Police, Community Caretaking, and the Fourth Amendment," 1998 University of Chicago Legal Forum 261, 261-314 (1998). https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1255&context=uclf
[13] Id.