When the relatively few Americans who care discuss the slow erosion of Fourth Amendment rights, we often focus on how Congress and the courts have weakened the warrant clause by purporting to increase the array of circumstances in which law enforcement can conduct warrantless searches.

But ultimately a warrant is just a piece of paper. When it's issued without meaningful review, or executed in an unreasonable manner, it offers only the appearance of compliance with our Fourth Amendment rights.

Let's look at two examples from this week's news.

You Already Knew That I Was Going To Write About This

There's no kind way to say this: many of the judges and magistrates who sign off on search warrants just suck. They're not the legal varsity, they kowtow to cops, they're too spineless to challenge the adequacy of probable cause, and they don't think about what probable cause means.

That's how you get cops asking for, and getting, search warrants when anonymous psychics tell them that somebody's house is hiding a mass grave of children.

The police in East Texas were led on a fruitless search on Tuesday evening when a woman, claiming to be a psychic, called in a sensational tip, saying she knew of a mass grave where dozens of dismembered bodies were buried.

Equipped with a search warrant and cadaver-sniffing dogs, deputies from the Liberty County Sheriff’s Office converged on a home on a narrow country road near Hardin — about an hour outside Houston — in search of a macabre crime scene. The news of a mass grave in rural Texas set off a news media frenzy: throngs of reporters camped outside the home, two news helicopters circled above, and cable news stations flashed alerts that up to 30 bodies had been found.

But in the end, there was no grave, there were no bodies and there was no sign that any crime had been committed — except, perhaps, the misleading call that created the spectacle in the first place.

Now, an anonymous tip can form part of the basis for probable cause supporting a search warrant — but only if that tip is meaningfully corroborated. Meaningful corroboration doesn't mean corroboration of innocent facts. For instance, if the police get an anonymous tip that I am running a vast marijuana farm in my red house on Oak Street, and they check and I do have a red house on Oak street, that's not corroboration. If the police get the same tip and determine that my electrical bills are $10,000 per month and that I have a greenhouse with the windows covered and that I buy two cases of Doritos per week, that's meaningful corroboration.

The degree of corroboration required varies with the nature of the anonymous tip. Here, an extraordinary anonymous tip — that the tipster knew of a mass grave because of psychic powers — should have required extraordinary corroboration. That's because, while we as a nation hold Jesus and the angels in high esteem, we tend to view their tips with skepticism when routed through 48-year-old Texas grandmothers named "Angel." Since we don't have the warrant affidavit — and, indeed, police may not have prepared a written one — we don't know exactly what corroboration police cited. Though some reports suggest police saw dried blood on a porch (itself inadequate, in my opinion, to corroborate a psychic's tip), others suggest that police relied on the fact that the psychic correctly described innocent details like the location, appearance, and layout of the house.

The point is this: when judges will issue search warrants based on transparent flights of fancy, and when other judges will (1) out of deference to law enforcement, be reluctant to throw out evidence derived from such flights of fancy, and (2) hold cops immune from lawsuits, then the warrant requirement is but a paper shield.

Your Worst Nightmare: An Educator With A Gun

Anton Chekov (no, not the Star Trek guy) said of writing drama, "one must not put a loaded rifle on the stage if no one is thinking of firing it."

Law enforcement training and procurement follows a similar ethos: supply creates its own demand. If you buy fancy toys for cops of any stripe, and train them to use them, then they're going to use them. Once law enforcement is equipped and trained to wield the hammer of paramilitary raids, then every search looks like a nail.

That's how the Department of Education's Office of the Inspector General came to execute a SWAT-style paramilitary raid on a homeowner to find evidence of his estranged wife's student loan fraud. We know that the DOE-OIG wasn't investigating dangerous or violent crimes, because we know what the warrant was for, and because they lack the power to do so — they investigate white-collar fraud crimes involving federal loans and programs. But DOE-OIG had procured Chekov's gun, and it couldn't just sit peacefully on the mantle in the third act. It — and their agent's paramilitary training existed, and had to be used. (I suspect there's a Napoleonic phenomenon going on as well: in my experience as a former fed and current defense lawyer, the more petty an officer's power, and the narrower his patch, the more he itches to exercise force and authority.) That's how they get to the place where they think it's appropriate to use this much force against an innocent citizen with no criminal record, and his family, because his ex was committing fraud:

"They surrounded the house; it was like a task force or S.W.A.T team," across the street neighbor Becky said. "They all had guns. They dragged him out in his boxer shorts, threw him to the ground and handcuffed him." [...]

Her young daughter, Valerie, said she counted 13 agents and one Stockton police officer outside Wright's home.

"I felt really bad for those kids," said Becky about agents when they brought out Wright's three children. "They were crying really loud."

Searches can be unreasonable not just in their purpose or in their supporting probable cause, but in their execution. A paramilitary raid is a grotesquely disproportionate approach to the investigation of a non-violent crime. It poses a grave risk of accidental death. It terrorizes innocents. And it conditions both police and citizens to view any law enforcement inquiry as justifying overwhelming force. Things like loan fraud and illegal milk sales should not require shock and awe.

The bottom line: we need to be vigilant for government abuse of the application for and execution of search warrants as well as erosion of the use of search warrants.

(hat tip: Enough at OO)

Remember the unspeakably evil Dr. George Rekers, simultaneous critic of gays and customer of rent boys, who conducted a hideous experiment too see if psychological torture would eradicate "feminine" behavior from a little boy?

CNN is running a three-party story about the experiment. The little boy, Kirk Andrew Murphy, committed suicide at age 38 in 2003. His siblings are now telling his painfully sad and chilling story. This is not a happy link. It will depress and infuriate you.

Rekers is unrepentant.

"I only meant to help, do the best I could with the parents, and I've written articles you can look up, too, on the rationale for our treatment. And the rationale was positive; to help children, help the parents who come to us in their distress asking questions, 'What can we do to help our child be better adjusted?' " Rekers said.

What could they do? Rekers told them to beat the kid if he acted girly.

According to Rekers' case study, blue chips were given for masculine behavior and would bring rewards, such as candy. But the red chips, given for effeminate behavior, resulted in "physical punishment by spanking from the father."

By the way, Rekers' "research" is still cited by anti-gay groups for the proposition that one can "cure" people of being gay. Do you suppose they know what Rekers did to produce the "data"? Do you suppose they care?

Last year I wrote about the regrettable case of Junius Peake, a former economics professor at the University of Northern Colorado, who reacted to a student's rather silly parody of him by calling the cops.

What was appalling about the story was not just that Petty Professor Peake reacted to satire by involving the cops. What was truly appalling was that the cops bit, and Deputy District Attorney Susan Knox authorized a search warrant for the student author's home, on the theory that the overt satire was criminal libel.

This week FIRE has an update — the District Court has, in an order granting summary judgment against prosecutor Susan Knox, found that she is liable for violating the student satirist Thomas Mink's rights. More specifically, the court found that Knox was not entitled to qualified immunity because, in light of the patently satirical nature of Mink's site, no reasonable prosecutor could have believed that the warrant established probable cause that Mink had committed criminal libel. (Knox is only entitled to qualified immunity because approving search warrants is a discretionary function, not a core prosecutorial function.)

This is an important and admirable victory — all the more so because it is so appallingly rare for prosecutors to be held liable for misconduct. Prosecutors have a legal and ethical obligation to be more than a mere rubber-stamp for law enforcement demands — they have an obligation to see that the execution of justice does not violate the clearly established constitutional rights of suspects and defendants. Here Susan Knox willingly let the criminal justice system be the lawless tool of a censorious, thin-skinned, and ultimately ridiculous thug. This puts a black mark by her name — and should.

You can read the opinion through the FIRE link.

Yes, this has been done to death. And it would be easy enough just to say that I agree with quite a bit of what Megan McArdle has to say.

But I can't resist a few points:

1. A scandal, however petty and stupid, is a crisis. If a politician demonstrates utter incompetence in handling even a petty and stupid crisis, it's reasonable to question whether he'd be able to handle a more important one competently.

2. With political power comes vast temptation. Politicians have opportunities to do bad things for bad reasons in their official capacity, and their bad choices can have an impact on millions rather than just their family. If a politician demonstrates an inability to resist personal temptation — even when yielding to that temptation poses obvious and disproportionate dangers to his reputation and family — then I question whether he can resist temptations brought to bear in his official capacity.

3. If Anthony Weiner and his wife had an open relationship, I wouldn't criticize it. If Anthony Weiner and his wife had an understanding that he could send pics of his dick to coeds, I wouldn't care. However, if Anthony Weiner betrays his wife, then I don't trust him. I don't buy the notion that private and public fidelity are separate; I think it's reasonable to question whether someone who breaks his word to his wife may also break his oath of office. Does that make me judgmental? Maybe. I'm not saying I would shun anyone who committed adultery (of whatever sort). I'm not saying I'd stop being their friend. I'm not saying that I'd judge them evil. I'm certainly not saying I'd assert that because they committed adultery and I didn't that I'm a better human being than they are. I'm just saying that not everybody has to be given the launch codes or the Treasury's purse strings. Significant political power carries with it significant temptation and significant occasion for dishonesty, and that dishonesty can impact the many rather than the few. I'd rather people without a proven record of oath-breaking exercise it.

I was reading Dr. Suess' The Sneetches to my middle daughter recently. Only a few pages in, she said, "This is about, like, white people and black people, right?" She's clever at sussing out subtext, which is one reason why she's dangerous.

The lesson of the Sneetches is that it would be silly to distinguish ourselves with easily adjustable markings, and (implicitly) that it's just as silly to distinguish and segregate ourselves based on factors like ethnicity. But . . . does distinguishing ourselves with marking have to be bad? What if we could use markings to resolve core cultural conflicts?

I asked myself that because I was thinking of both regulatory and moral nanny-statism (inspired by reviewing past posts about San Francisco and by asshat Jeff Kropf.) How do we reconcile people who want to run other people's practical lives with people who want to run other people's moral lives and people who just want to make their own life?

I suggest iron-on patches. Or sewn, or some sort of sticker: I'm flexible.

This is kind of a riff on my old proposal for a class of citizens called grownups, but more multifaceted.

Imagine: everyone can elect to wear one of three patches. There's the Best Interests Of The Community Club, the Righteous Club, and the Independents. The Righteous could have a patch with the Cross or the Star of David or whatever. The Best Interests Of The Community Club could have a little picture of the Legislature or the Department of Health and Human Services or something. The Independents could have a patch with a handgun, bong, and picture of Ayn Rand. Folks would buy the patches and stickers and put them on their car, in their wallet, on the back of their iPhone, or wherever it's convenient.

And then they'd go out into society and be bound by the rules that their tribe decided to impose upon itself.

If you've got a Best Interests of the Community Club sticker on your car, you can't get a Happy Meal with a toy in it at McDonald's, because the wise folks who make decisions for the Best Interests of the Community Club know that those are bad for the community. And you better not walk around in public with bottled water or leather shoes if you've got a BICC patch! They'll give you a ticket. If, on the other hand, you've got a Righteous Club patch, then you can't get into an R-rated movie (excepting R-rated movies depicting the Crucifixion) and can't buy Harry Potter books, because the clergy that leads the Righteous Club has decided that those things are bad for the faithful. You've got to allow the Righteous authorities to install a filter on your web browser, too, to keep you away from harmful things. If you've got an Independents sticker, you can buy cheap plastic in your Happy Meals and watch R-rated movies to your heart's content. But you won't be able to sue for anything without a panel of Independents certifying that your position in the lawsuit is premised on an adult level of personal responsibility (reading contracts before signing them or taking your chances, exercising due care or taking your chances, having a normal person's understanding of the dangers posed by interacting with the world, etc.) and supported by both science and hard evidence. Independents cannot attempt to impose upon any other person any rule or standard of care that Independents do not impose on themselves. Independents also won't be eligible for any form of public assistance or charity.

Everyone would be free to rise up among the ranks of their own group to shape its policies. The Righteous will be able to dictate the activities of some of the citizenry, just not all of it. The wise and concerned members of the Best Interests of the Community Club will be able to achieve their regulatory utopia among their own ranks, just not among everyone. And the Independents will be able to leave each other alone without thwarting the desires of some people to escape from freedom and micromanage the affairs of (some of) their fellow citizens. We indulge some people (the BICCs and the Righteous, in different ways) in their desire to dictate not only their own destiny but the destiny of others. And we make the Independents put up or shut up — will they survive without the protections of the moron-cuddling legal system and the welfare state?

Sure, there would be some social dislocation and inter-group hostility. Sure, people would disdain members of other groups (would you sell a potentially dangerous tool to anyone but an Independent? ).

But what's that compared to giving everyone at least a slice of what they want?

When Debbie Lee Higbee, a 54-year-old hairdresser in Gladstone, Oregon was murdered, many people thought it was sad. No doubt one of the most devastated was her long-term partner, Gladstone police sergeant Lynne Benton.

Jeff Kropf, former Oregon state representative and Oregon director for the group Americans for prosperity, thought this story was sad, too.

It's possible Jeff Kropf doesn't think that it's sad for the same reasons you do, though.

Now, anyone can express themselves poorly, particularly on Facebook. Maybe Jeff Kropf garbled what he meant to say and cleared it up when he had a chance, right?

Right?

Oh. Wow.

Jeff Kropf, you are our asshole of the week, beating out vexatious litigants, anti-Semites, and career white supremacists. Congratulations.

Jeff, to put it in terms you are familiar with: you are a sick, amoral freak.

(hat tip to Walter Olson)

You've probably heard that San Francisco voters will consider a ballot measure to ban circumcision in the city. It's a controversial topic; there are hotly contested medical, social, and individual rights arguments on both sides. I'm not going to try to resolve them: I was circumcised, my son isn't, I see arguments on both sides.

Some Jewish leaders view the initiative as an anti-Semitic attack. It need not be one, necessarily — the circumcision rate in the United States hovers around 50%, while Jews make up only about 2% of the U.S. population (and observant Jews less than that). Moreover, there are many arguments to be made against circumcision that do not depend on denigration of religion.

It would take a heroic effort to frame this dispute as primarily one of anti-Semitism in time for the vote.

Help us, Foreskin Man!

Continue Reading »

This morning I'm very sorry to see news of the passing of Joel Rosenberg — husband and father, author, gun policy expert, and activist.

As a youngster, I thoroughly enjoyed Joel Rosenberg's Guardians of the Flame series. As a writer at Popehat, I grew to appreciate a frequent commenter who went by the handle Jdog — and I was delighted to discover that it was Joel. Later, I came to admire his activism on gun rights issues and his willingness to stand up against the ethos that the rules for citizens are whatever some upjumped government lackey thinks they should be. From interchanges with him after Patrick wrote about his case here, I found that he was as delightful a correspondent as he was an author.

He leaves us too soon. My thoughts are with his family.

Multiple sources are reporting that federal prosecutors will file charges against John Edwards on Friday, June 3, 2011, as a result of their investigation into gifts Edwards allegedly used to conceal his mistress and child.

If Edwards is being charged Friday, it's likely either an indictment (if they haven't yet negotiated a plea) or an information (if they've signed a plea agreement and a waiver of indictment.) More when it happens. A plea seems like a strong possibility. Edwards doesn't want a public trial, and the Department of Justice's Public Integrity Section doesn't want to sift through millions of pages of documents deciding which exculpatory evidence to withhold, which witnesses should be sent out of state to make them unavailable to the defense, which lies to tell the court, and which witnesses should sleep with which FBI agents.

Meanwhile, I started a EdwardsProbationConditions hashtag on Twitter.

Congress passed the PATRIOT ACT — a long, badly written, insanely complicated piece of legislation — without reading it. No surprise — they all had rage boners, and Americans love big, grand gestures of we're-really-a-gonna-do-something-now, like voting for 342 pages of prolix government-empowering drivel without reading past the big shiny PATRIOT label.

If the people who voted on it never read it and don't understand it, then it shouldn't surprise us that the rest of America doesn't know what the hell is in it, either.

This fundamental ignorance is reflected in two trends. The first trend is for the media to blame government actions on the PATRIOT ACT, even when the particular law enforcement behavior at issue actually has nothing in particular to do with it. See, the government already had all sorts of scary-ass powers before 9/11, and in many cases the PATRIOT ACT left them alone or barely tweaked them. But the media — and people who like talking to the media — enjoy promoting ignorance by attributing all law enforcement excesses to post-9/11 fervor.

The second trend is an outgrowth of the first. "Because of the PATRIOT ACT" has become a popular alternative among cops to "because I said so, motherfucker. How does the pavement taste?" Case in point:

In a YouTube posting, Christopher Fussell left the camera rolling when he was confronted by three MTA officers for taking pictures at the Baltimore Cultural Light Rail Station.

“It is my understanding that I am free to take pictures as long as it’s not for commercial purposes but for personal use,” Fussell said in the video.

“Not on state property, not without proper authorization,” an officer said.

Fussell: “From who?”

Officer: “Nobody’s allowed to take pictures.”

The MTA admits the officers were in error.

“They can most certainly take photos of our system,” Ralign Wells, the MTA Administrator, said.

In addition to being wrong about MTA and state policy, the officer incorrectly cites the Patriot Act.

“Listen, listen to what I’m saying. The Patriot Act says that critical infrastructure, trains, train stations, all those things require certain oversight to take pictures, whether you say they are for personal use or whatever, that’s your story,” the officer said.

Now, cops have always vaguely referred to bodies of law to justify telling people not to do things they have a protected right to do. But the PATRIOT ACT gives them undreamed-of street cred when they do so. See, (1) hardly anyone knows what is in it, (2) the media blindly pushes the narrative that the PATRIOT ACT actually does let cops do all sorts of stuff they've always done, and (3) the culture blindly pushes the narrative that we need to yield to authority whenever that authority can forge a connection, however tenuous, to OMG 9/11. Hence ignorance — both our own, and that of the people we look to for information — is one of the chains that binds us.

Few people stand up and question it like Christopher Fussell did in this case. Most people cave. Good for Christopher Fussell.

Hey, remember Bill Johnson?

Bill Johnson, racist lunatic who (under one of his assumed names) proposed a constitutional amendment that would allow only certain whites to vote? Bill Johnson, who tried to ditch that racist lunatic past and run for Superior Court Judge in Los Angeles County? Bill Johnson, who made it onto the Ron Paul 2008 endorsement list until someone noticed his history of racial lunacy and threw him under the blimp? Bill Johnson, local boy in my hometown, who inspired ridiculously incompetent news coverage by my local rag?

He's still around.

When the story broke that judicial candidate Bill Johnson was also known as James O. Pace, author of the Pace Amendment, reaction from Johnson supporters (which included, but were not limited to, Ron Paul supporters) were dubious and/or angry. Not angry at Johnson — angry at people who criticized him. The forums are deleted now, but some supporters asserted that the whole story was all a trick. Many others suggested that Bill Johnson must have changed, that he's no racist, that he was real friendly to non-whites now, and that if he ever was a racist he isn't one now, and this is all just liberal Obama race-card playing.

Yeah. About that.

Via a trackback to my original Bill Johnson post, I discovered a "white nationalist" website reporting on a "white nationalist" entering a Congressional race in Montana. From passing references there, I learned that Bill Johnson is now the Chairman of something called America Third Position, which "exists to represent the political interests of White Americans." His biography notes that he is "more than any other, responsible for safeguarding the course, values, and program of the party."

So, Johnson-for-Judge supporters, how's that apologia looking now?

(I leave it to the imagination of the reader whether a white nationalist site would link to my original post about Johnson to identify him because (1) they didn't read it, (2) they're stupid, or (3) they don't give a shit that it's not complimentary.)

(By the way: Johnson lives (or until very recently lived) within a few miles of me. My wife and I are white, but our kids are Asian-American. Writing about him and people like him tends to attract the sort of people who have a history of inciting threats and violence against people they don't like, with success. However, please remember that Very Serious People think that I should not blog anonymously and that you should think less of me if I do.)

Goofus pursues a public relations strategy guided by a room of sugared-up ADHD ten-year-olds.

This week, Democratic Rep. Anthony Weiner went all Goofus on us, lurching from one odd stance to another in what almost seems like a deliberate attempt to publicize as widely as possible allegations that he tweeted a picture of his dick. He's not an NFL quarterback, so the picture (which I refuse to post) features an underwear-clad male in what the old obscenity laws refer to as "a discernibly turgid state" (which does not, I learned in law school, refer to Florida). Weiner has gone from asserting that his Twitter account was hacked, to refusing to talk about whether it was hacked, to lashing out at journalists, to answering questions in a thunderously inane manner:

NBC’s LUKE RUSSERT: “That’s not a picture of you?”

REP. ANTHONY WEINER: “You know, I can’t say with certitude. My system was hacked. Pictures can be manipulated, pictures can be dropped in and inserted.”

Shwaaaaaaa?

Weiner appears to be taking a wide stance here, maintaining the ability to argue that maybe it's a picture of him, maybe it's not, maybe it's a picture of him that's been altered.

It's funny, because I think most of us know right away, off [pardon me] the top of our head, whether or not we have a picture of our own boner. I know I don't. I'm almost 42 and tired and overweight and by the time the medication kicks in my vision is too blurry to use the camera function on my iPhone.

Some smart people I respect have argued that this ought not be a story at all, because what a government actor does in their private life isn't news. I have to agree in part and disagree in part. I don't care if Rep. Weiner and his wife have an understanding involving social media, his genitals, and third-party coeds with handles like @gullibleforDems. This isn't a morals issue. This is a intelligence/judgment/self-control issue. If a politician's Gary-Hart sexual antics suggest that he lacks sufficient self-control to avoid engaging in activities highly likely to get him caught and publicly humiliated, there's reason to question whether he has the self-control necessary to deal with more politically substantive temptations. If a politician can't address a personal crisis without flopping all over the networks like a dying fish on a dock, then there's reason to question whether he can manage crises of leadership. Hell, even if a politician is falsely accused of sexual impropriety, if he adopts a strategy that makes him look like he's being controlled by that alien who wore Vincent D'Onofrio for half of Men in Black, then it's reasonable to question whether he can hack the big jobs.

I want our leaders to be able to grasp the most basic principles of crisis management, like shut up until you have your story straight and don't go off all half-cocked.

So, Goofus, if news stories about your erection persist for more than four news cycles, consult a public relations professional. Right now, your strategy is so very, very bad that I'm beginning to suspect that you came up short when the Democrats drew straws to see who'd be the guy to create a diversion while they carried a dead hooker out the back of the Capitol building.