Litigation Group Seeks to Block Leesburg Police’s Facebook Search Warrant

A Sept. 11 protest that left a message painted on the sidewalk in front of Attorney General Mark Herring’s downtown Leesburg home prompted the town’s police force to obtain a search warrant to find out who was responsible for the crime. Now, the activists who led the protest are petitioning the court to block that search.

On the evening of Sept. 11, the Leesburg Police Department received a report of 20 to 25 people wearing black masks gathering in front of Herring’s home. The group, later reported to be the Free Them All VA Coalition, was protesting the U.S. Immigration and Customs Enforcement’s transfer of migrant detainees to the Farmville Detention Center, where a COVID-19 outbreak ensued and resulted in one death.

Coalition members painted “LIBEREN A TODXS” and “FREE THEM ALL!” in large blue letters on the town-owned sidewalk.

Although members of the coalition claimed the paint could be easily removed, Loudoun County Fire-Rescue crews were unable to wash it off. Staff members from the town’s Public Works Department subsequently removed the paint.

Leesburg Police Department Public Information Officer Michael Drogin said the agency has already charged one person, Jessie Patton, 29 of Fairfax, with misdemeanor destruction of property. Officers were finally able to serve that warrant on Sunday.

To determine who else was responsible for the property damage, the Police Department on Sept. 15 requested a magistrate issue a search warrant to obtain information from Free Them All VA Coalition’s Facebook page.

Drogin said the magistrate did sign off on the search warrant and that it has been served on Facebook, but no information has come back to the department yet.

The search warrant’s scope included, “Any and all subscriber records including subscriber names, address, phone numbers, length of service, credit card information, email address(es), and recent login/logout IP address(es). Any and all wall content/posts, messages, chats, videos, and pictures to included deleted material.”

The Free Them All VA Coalition—which claims on its Facebook page to be an abolitionist coalition that aims to “amplify the organizing and voices of those incarcerated in Virginia detention centers, jails and prisons”—claimed that scope was too broad. On Oct. 13, the coalition, via its legal counsel the Public Citizen Litigation Group, filed a motion to quash the search warrant.

“The warrant is manifestly overbroad. Most of the material demanded bears no relation to the investigation for which the police sought the warrant,” the motion reads.

The Public Citizen group wrote in an Oct. 14 blog post that although the search warrant was limited to the period of Sept. 10-15, posts and messages from earlier time periods remain in the private section of the Free Them All VA Facebook page and could be subject to the warrant.

Many of those messages, the litigation group claims, relate to the health and immigration status of the posters and their families. The group also claims messages exist related to the political strategies “aimed at effecting change in public policy.”

The motion details that the search would enable the government to review private communications on strategies outlining ways to disagree with elected officials and build public opposition to those officials’ policies and practices, which could lead to discrimination and retaliation against those individuals and their families.

“… [Y]ou could have law enforcement officials paging through a whole bunch of confidential messages, having nothing to do with the supposed crime of painting words on a sidewalk,” the litigation wrote in its Oct. 14 blog post. It noted in its Oct. 13 motion that the sidewalk damage cost the town less than $1,000 to remedy.

In addition to representing the Free Them All VA Coalition, the Public Citizen group also is representing three anonymous Facebook users who were not at the protest outside Herring’s house but are concerned that they could suffer personally if they are identified as being associated with the Facebook group.

The litigation group asserts that “paging through irrelevant documents” is construed as “exploratory rummaging,” according to the Fourth Amendment’s ban on unreasonable searches and seizures. The group also asserts that the search of the Free Them All VA Facebook page would violate its members’ rights under the First Amendment, which, the litigation group wrote in its blog post, “… bar[s] investigations that unjustifiably chill the free speech of unpopular groups.”

More generally, the information of Facebook users who merely follow and like the Free Them All VA Facebook page could be subject to the search warrant’s demands, the Public Citizen group claims. The group also claims that police officers could use the additional information they receive from the search warrant to charge individuals with more crimes they would have been unable to charge if the warrant had a narrower scope.

The group is asking the court to include some limitations on the search warrant even if it doesn’t quash it altogether, perhaps by constraining the search to certain keywords and by “withholding any identifying data from the government unless and until it shows to a judge’s satisfaction that a particular message or image is potentially evidence of a crime.”

Responding to claims that the scope of the search warrant is overly broad, Drogin said the language included within “is consistent with the execution of social media site search warrants.”

The Leesburg Police Department’s Criminal Investigation Section continues to investigate the Sept. 11 incident.

A scheduling date of Nov. 10 is set in Loudoun County Circuit Court on the matter of the motion to quash the search warrant. A response to the Public Citizen group’s motion has yet to be filed.

As for the COVID-19 cases at the Farmville Detention Center, four detainees filed a lawsuit in federal court against the U.S. Department of Homeland Security, which oversees ICE, on July 21. They are urging the court to order the federal agency to reform conditions in the detention center and abide by Centers for Disease Control and Prevention by prohibiting all transfers in and out of the detention center.

According to the lawsuit, ICE transferred 74 detainees to the Farmville Detention Center from detention centers in Florida and Arizona in June without first testing the detainees for COVID-19. Of those transferred, 51 tested positive for COVID-19. By July, at least 315 detainees—more than 80% of the center’s population—tested positive for the virus, according to the lawsuit. On Aug. 5, a 72-year-old Canadian detainee held at the Farmville Detention Center died after testing positive for COVID-19 a month earlier, according to an Aug. 7 statement from ICE.

Although the Farmville Detention Center is a federal property operated by ICE, several organizations have been calling on Herring and Gov. Ralph Northam to take action to protect the health of the detainees.

Charlotte Gomer, Herring’s press secretary, said Herring shares the concerns that others have expressed regarding the COVID-19 issues at the Farmville Detention Center.

“[Herring] will continue to urge the Trump Administration to take the COVID crisis more seriously and meet its obligations to ensure the health and safety of persons in its custody,” Gomer said.

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