Privacy Law

3rd Circuit orders release of ex-cop who wouldn't unlock hard drives, cites cap on civil contempt detention

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A federal appeals court has ordered the released of a former Philadelphia police officer who spent more than four years in prison because he didn’t comply with a court order to provide hard drive passwords.

The 3rd U.S. Circuit Court of Appeals at Philadelphia found that federal law limits detention of witnesses in civil contempt proceedings and ordered the release of the former officer, Francis Rawls, report the Philadelphia Inquirer and the Associated Press. How Appealing links to the 2-1 decision. issued Feb. 6.

“If the government seeks to impose any additional deprivation of liberty for Rawls’ status as a suspect in the alleged child pornography offenses, the agovernment must charge Rawls with those offenses, provide Rawls with a trial by a jury of his peers, prove those charges beyond a reasonable doubt, and sentence Rawls in accordance with due process,” the appeals court said.

Federal law places an 18-month cap on the civil contempt detention of witnesses who disobey court orders to testify or provide information, the 3rd Circuit said. Because Rawls is a witness in the civil contempt proceedings against him, he should be released, the court majority concluded.

Investigators had sought Rawls’ passwords because they suspected that he could have child pornography on his encrypted hard drives. Although the government was not able to access the hard drives, forensic analysts discovered the password to his computer. Logs showed that the computer had been used to download thousands of files known to be child pornography.

In addition, Rawls’ sister testified that Rawls had shown her “hundreds of images of child pornography on the external hard drives, including videos of children engaged in sex acts with other children.”

Rawls’ sister said Rawls had accessed the hard drives by entering the passwords from memory, according to a previous opinion in the case. He also provided the password for his iPhone, which contained 20 photos focusing on the genitals of a 6-year-old girl.

The appeals court majority said Rawls was a child pornography suspect, and he was also a material witness in the civil contempt proceedings against him.

“In producing the passwords needed to decrypt the external hard drives, Rawls would be acknowledging that the hard drives were in his control and that he was capable of accessing them—an act with testimonial value,” the majority said in an opinion by Judge Julio Fuentes.

In addition, a person can be a witness under the civil contempt law even when the evidence sought is not considered “testimonial” for purposes of the Fifth Amendment, the appeals court said.

A panel dissenter, Judge Jane Richards Roth, said the 18-month limit applies only to people who are witnesses before or ancillary to a federal court or grand jury. The law and its incarceration cap shouldn’t be stretched to cover preliminary investigations, Roth said.

Rawls had previously argued that the order to provide passwords violated his Fifth Amendment right against self-incrimination.

The 3rd Circuit ruled in 2017 that the passwords could be compelled under the All Writs Act of 1789, and the trial court didn’t abuse its discretion by issuing the contempt finding. Rawls failed to preserve the Fifth Amendment argument. However, the 3rd Circuit said the trial judge didn’t commit a clear error in ruling that there was no violation.

Rawls was released Thursday night, his lawyer told the Philadelphia Inquirer. He spent 17 years as a police officer before his firing in 2015, and now he faces the challenge of rebuilding his life, said the lawyer, Keith Donoghue of the Federal Community Defender Office.

Donoghue said Rawls maintains that he didn’t know the passwords to his hard drives. Rawls did not testify on the record about why he failed to turn over the passwords.

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