Browsing the archives for the Criminal Justice tag.


Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop

Law

Today the United States Supreme Court decided Navarette v. California, upholding a California court's determination that a traffic stop of Navarette's truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is here. It's a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way.

The issue at hand is the power and reliability of anonymous tips. Here the California Highway Patrol received an anonymous tip through a 911 dispatcher that a silver Ford 150 pickup on a particular highway had run the tipster off the road. The CHP saw a truck matching the description on the highway and stopped it on suspicion of drunk driving — but did not first observe the truck doing anything illegal or reckless. In fact, the cops followed the truck for five miles without observing any traffic violations. The cops approached the truck and (allegedly) smelled marijuana, which led to a search and the discovery of a substantial amount of marijuana in the truck bed.

The Supreme Court has found that the Fourth Amendment permits brief, investigative stops of vehicles based on reasonable suspicion alone — that is, a "particularized and objective" basis to believe some crime is being committed. That's not new. Nor is it new that an anonymous tip can form part of the basis for reasonable suspicion or probable cause — if the tip is corroborated.

What's novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip.1 Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.

The majority uses sophistry to turn innocent facts into facts that corroborate the anonymous typster:

By reporting that she had been run off the road by aspecific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

. . . .

A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.

. . .

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

. . . .

Another indicator of veracity is the caller’s use of the 911 emergency system. See Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

The majority is turning three things into corroboration here: (1) the fact that the person claimed something happened immediately after it allegedly happened, (2) the fact that a person predicted that a particular car would be on a particular highway, and (3) the fact that the person called 911 and made the claim. But the 911 caller could have claimed anything — that someone was pointing a rocket launcher out the window of the truck, that someone was stabbing a nun in the back of the truck — and gotten the same result. (1) and (3) are just restating the premise "we got an anonymous tip about this," and (2) is a purely innocent fact that any public observer could know. This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.

Justice Scalia's dissent is thorough and merciless, as it should be. Here's how he ends it:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Justice Scalia is right. This decision waters down corroboration to the point that it is meaningless, effectively making any anonymous tip of a driver's behavior sufficient to justify a traffic stop. That's a bad result.

See also Jonathan Adler.

42 Comments

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich

Law

Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.

The question presented was not whether assets can be frozen before trial — it's old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury's probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:

A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not "baseless," as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.

As Scott Greenfield puts it:

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

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What Dinesh D'Souza Would Have To Prove To Establish Unconstitutional Selective Prosecution

Politics & Current Events

Conservative author and speaker Dinesh D'Souza has been indicted in federal court in New York for campaign finance violations. More specifically, the feds have charged D'Souza with what is frequently called donation laundering. They assert that he reimbursed other for their donations to his chosen United States Senate candidate, thereby exceeding the statutory limit on personal donations. They also assert that he caused a false statement to be submitted to the feds, in that as a result of the alleged donation laundering the candidate's Federal Elections Commission statement identifying donors was rendered inaccurate.

Some people are suspicious that D'Souza is being singled out for his strong criticism of the Obama Administration, including his polemical documentary "2016: Obama's America." I hold no brief for D'Souza — I find him to be a crass, Coulteresque, unconvincing bomb-thrower. But I do not find it difficult to believe that the United States Department of Justice would single out an American for prosecution based on political views that are unpopular or offensive to those in power. My view is absolutely not limited to the Department of Justice under this administration. Selection of anyone for prosecution based on their views — whether I like their views or not — is an abhorent abuse of power that could easily be turned upon me or upon people with views I like.

A federal defendant who feels targeted based on protected speech may file a motion to dismiss the case for "selective prosecution." But it's a very difficult motion to win.

Federal prosecutors have extraordinary broad discretion in deciding whom to prosecute. However, they can't target people for prosecution based on constitutionally prohibited factors:

As we have noted in a slightly different context, however, although prosecutorial discretion is broad, it is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is … subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979) (footnote omitted). In particular, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Bordenkircher v. Hayes, supra, 434 U.S., at 364, 98 S.Ct., at 668, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, supra, 457 U.S., at 372, 102 S.Ct., at 2488.

Even though prosecution based on impermissible factors like race or protected speech is prohibited, the standard for proving it is high. The Supreme Court has announced that prosecutorial decisions are cloaked with a "presumption of regularity," and that courts must "presume" they have acted rightly absent "clear" evidence of discriminatory targeting. The Supreme Court explains:

Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.

Sometimes, when you devote so much concern to the state's interest in unfettered prosecution, there's not much concern left for the defendant. Judges are only human, after all.

Under this regime, to show selective prosecution, a defendant must establish by "clear" evidence that "similarly situated individuals" without the prohibited characteristic were not prosecuted, and that the motive in this case was impermissibe. In a case alleging racial selective prosecution the defendant would have to show similarly situated people of a different race weren't prosecuted. In a case like Mr. D'Souza's the defendant would have to show both that (1) similarly situated people who didn't engage in the protected speech weren't prosecuted, and (2) the decision to prosecute was based on animus towards the protected speech. This is a tremendously difficult standard to meet. How is a defendant supposed to know whether other people have committed the same crime and been passed over by the government, particularly when the government's investigations are secret and when the conduct in question is difficult to detect?

A defendant can demand discovery from the government about whether it has passed over other people who committed the crime. But the Supreme Court has set a high bar for entitlement to such discovery. To force the government to produce statistics and other information about its prosecution decisions, the defendant must produce "some" evidence in support of both prongs of the selective prosecution test — that is, some evidence that others similarly situated are not being prosecuted, and some evidence of improper motive. In U.S. v. Armstrong in 1996, the Supreme Court held that it was not enough that defense lawyers in Los Angeles showed that the defendants in federal crack cocaine cases were almost all African-American; to get discovery they also had to supply some evidence that the feds were passing over white defendants.

In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D'Souza's attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.

134 Comments

Update: The Quantum of Recovery For Rape-and-Torture-By-Police In New Mexico Is $1.6 Million

Effluvia

Back in November I wrote about David Eckert of New Mexico. As you may recall, City of Deming police officers stopped Eckert for running a stop sign, and together with Hidalgo County Sheriff's Deputies concluded that there was probable cause to think that he was smuggling drugs in his anus. As I wrote back then, that conclusion was based on the following fanciful chain of supposition:

That his hands were shaking and he avoided eye contact during a traffic stop;

He refused to consent to a search of his person;

He stood erect with his legs together;

No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);

A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and

An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.

Based on those "facts," and with the approval of Deputy District Attorney Daniel Dougherty, the police sought and obtained a warrant to search Mr. Eckert's anus. The following rape and torture — and I use those words deliberately and advisedly — followed:

1. Eckert's abdominal area was x-rayed; no narcotics were found.

2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.

4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

No. No narcotics were found.

Are there consequences to that sort of conduct? Sort of. Eckert has settled with the City of Deming, the County of Hidalgo, Officers Bobby Orosco and Robert Chavez, and Deputies David Arredondo, Patrick Green and Robert Rodriguez. He has agreed to dismiss his lawsuit against them. he will be paid $1.6 million — it's not clear how that is apportioned between the City and the County, but you can assume that New Mexico taxpayers, not the law enforcement officers who engaged in a conspiracy to commit torture and rape, will foot the bill.

Deputy District Attorney Daniel Dougherty has a motion to dismiss pending. He will probably win it. Prosecutorial immunity is most likely broad enough, under current law, to cover approving a transparently ridiculous warrant application seeking to torture and rape a man based on fluff. Nice work if you can get it and you are in to that sort of thing, I suppose.

Doctor Robert Wilcox of the Gila Medical Center — who played the "bring out the gimp" role in this rape and torture scenario — has also filed a motion to dismiss, which in part argues that he is entitled to immunity because he was following orders — the orders of the police and the judicially approved search warrant. We'll see how that works out for him.

The $1.6 million was offered and accepted quite swiftly. That's a substantial amount of money for a case not involving death or dismemberment, especially during times when local governments don't have a lot of money. It suggests to me that the City and County thought they had a terrible case. It makes me even more suspicious that the key "fact" of the warrant application — that some unspecified deputy told the affiant that Mr. Eckert had smuggled drugs in his anus at some unspecified time before — was knowingly fabricated by somebody in the chain.

This case sickened me. But I can't say that it surprised me. The only thing out of it that would surprise me is if any of the individual police officers or sheriff's deputies faced any genuine significant consequences arising from it.

Whether or not you agree with my legal criticism of the sufficiency of the warrant application, bear this in mind: because of the mindset promoted by the Great War on Drugs, these cops, this deputy DA, this judge, and this doctor all reached the same moral conclusion. Their moral conclusion was that because they posited that this man had drugs in his anus — necessarily the small amount that could fit there — it was necessary and appropriate and acceptable forcibly and repeatedly to probe his anus, forcibly to give him an enema, to x-ray him, to sedate him, and to perform a colonoscopy on him under sedation. That's the mindset of the Great War on Drugs. It's perverted and despicable. It's subhuman. Do you support it?

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Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order

Effluvia

I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.2

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.

Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.3

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.

Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.

23 Comments

The Privilege To Shut Up

Law, Politics & Current Events

One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although "oh you dumb son of a bitch will you for the love of God shut up" might capture the flavor better.

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Police Who Rape

Law, Politics & Current Events

The always awesome Rick Horowitz has a great post about police who rape. Here's one fun fact among many: "the United States outdoes India when it comes to custodial rapes of women by law enforcement personnel".

But, hey, it's fundamentally a good system. I'm sure it can be reformed from within.

UPDATE: if you're getting sick of the all-law-enforcement-slagging-all-the-time channel, I've got two posts that just moved from the back burner to the front burner of actual composition: Urbit For The Non-Vulcan, and The Nine Nations and Four Seeds of North America.

11 Comments

Encourage People To Contact the Boston Police Department's Bureau of Public Information? That's A Jailin'.

Law

Carlos Miller runs the indispensable blog Photography Is Not A Crime, which documents the struggle between citizen-photographers and the cops and government officials who would like to prevent them from taking pictures of things. That's a trend we've talked about here as well — whether it's cops arresting citizens on the pretense that their cell phones might be futuristic weapons or on the pretense that they are "interfering" with police business (even when they are a safe distance away on their own property). In addition, we've talked about the ongoing legal struggle against laws that purport to prohibit citizens from recording cops engaged in their duties in public, and about how cops are attempting to suppress publication of recordings of their public activities.

Miller's campaign has gotten him charged with crimes before. Now it's happened again — because he published the contact information of the Boston Police Department's Public Affairs Officer.

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77 Comments

A Modest Argument About Police Culture Culminating in a Reference to the Hare Psychopathy Checklist

Law, Politics & Current Events

In the comments to Ken's excellent post on the recent repeated digital anal rape of a citizen by government employees, commenter
@Ryan took me to task:

@Clark

On Nov 7 at 7:51 AM you wrote:

Prenda et all have no more harmed the reputation of "all lawyers" than OJ Simpson harmed the reputation of "all African Americans" or Bernie Madoff harmed the reputation of "all Jews".

People are individuals. Pick any set and you'll find sinners and saints.

Then at 4:54 PM on Nov 7, you said:

Dogs are people, but LEOs – by pinning on a badge and pledging that they'll enforce the law – even when the law says that innocent people should be jailed or dogs can be shot – have opted out of the human race.

Fuck them all, and may they die slow horrible syphilitic deaths.

Which makes me wonder how the eminently reasonable Clark of this morning got replaced and when. The juxtaposition is astounding.

It's remarkable that you can, in the span of less than 12 hours, move from a statement that assigns blame to people as individuals and not the profession they belong to, to the polar opposite, just because the latter happens to spout hate and vitriol toward a group you vehemently dislike, while the former forgives people who are in a profession that you at least partially respect because of a few individuals you know who are a part of it.

This is a good point, and it deserves an answer.

My response has two prongs:

1) the inherent evilness of the full job description of law enforcement

2) the overwhelming default culture of law enforcement

Point One: inherent evilness of the job

I already addressed the first prong in an earlier comment, where I said:

It is wrong to discriminate against Blacks or Jews or Hispanics or Gays because people are born into those groups and do not pledge any sort of allegiance to them, nor does their inclusion in a group show that they have opted into the dominant ethical pattern.

Is it right to discriminate against Jihadis or SS members or KKK members or Bloods or Crips because (a) people consciously opt into said group, and (b) do so knowing their norms and and behaviors.

The War on Americans Who Use Drugs has been going on for decades. It is a very rare LEO who pinned on the badge before the War.

In 1944 I'd hold no ill will (or not much) to a German who was drafted…but if a German signed up to go throw Jews out of their homes, then screw him.

In 2013 I hold no ill will (or not much) to an American who is drafted into the American police…but if a man or woman signs up to go shoot dogs and digitally rape anuses, then screw him. He's bought what Screwtape is selling.

tl;dr: The job description is evil. Only evil people sign up for an evil job.

Point Two: The LEO Culture Turns Good Men Bad

The second prong of my argument is the culture of law enforcement.

Let's assume that that 5% of humans are power-mad thugs, psychopaths, whatever you want to call them.

A priori we can assume that these people are distributed evenly throughout professions…but perhaps that's not true. Maybe the field of lawyering attracts these people. I don't think so, but say it's true, and 10% of lawyers are Prenda-rific and routinely lie, cheat, steal, etc. 10% is still a minority of all lawyers, and there are no network effects that turn 10% into 90%. The opposite is true: lawyers are split into factions and they work against each other all the time, not just in the courtroom but in the marketplace. The adversarial nature of the profession means that any bad acting lawyer is always risking exposure from others.

Law enforcement culture, on the other hand, does have network effects. Cops work together as a team, whether they're in the same squad car, the same department, or just in the same country. The culture is deeply insular with special ID cards and bumper stickers promising special treatment, and a culture that routinely and harshly punishes anyone who breaks from the party line. This is a system almost custom designed to let moral and procedural rot run rampant. (Recall that as much as cops like to wash their hands of a fellow cop who was caught doing a crime by calling him "one bad apple", the full phrase is "one bad apple spoils the bunch".)

Conclusion

Whites have sinners and saints.

Blacks have sinners and saints.

Oregonians, Texans, and New Yorkers have sinners and saints.

Accountants, hairdressers, and coal miners have sinners and saints.

Law Enforcement, though, is unlike all of these – the job description is organized bullying, and that (a) attracts psychopaths and (b) converts non-psychopaths into – at worst – psychopaths, and – at best – into those who merely tolerate, absolve, and cover up for the psychopaths. For fun, run down the Hare Psychopathy Checklist and compare the bullet points to the typical cop's personality. Glib, grandiose, lying, manipulative, remorseless, lacking empathy, needing stimulation, parasitic lifestyle … the list goes on and on.

The police are a monopolistic organized gang that – as an emergent social entity – delights in violence, repression, and control, and is made up of members who are resemble it in miniature. It is no more morally complicated to fear, disdain, and hate people who choose to join the police than it is to fear, disdain, and hate people who choose to join the KKK.

That said, one should hate the sin and not the sinner.

I'm trying, Ringo. I'm trying real hard.

UPDATE: The always awesome Maggie McNeill points me to an old blog post of hers that bears on this topic:

If a cop is tasked with enforcing a law he knows to be immoral, it is his duty as a moral man to refuse that order even if it means his job. If he agrees with an immoral law then he is also immoral, and if he enforces a law he knows to be wrong even more so. The law of the land in Nazi-era Germany was for Jews and other “undesirables” to be sent to concentration camps, and the maltreatment of the prisoners was encouraged and even ordered by those in charge; any German soldier or policeman enforcing those laws was the exact moral equivalent of any soldier or policeman under any other democratically-elected government enforcing the laws enacted by that regime. Either “I was only following orders” is a valid defense, or it isn’t; either we agree that hired enforcers are absolved from responsibility because “they’re just doing their jobs”, or we don’t. You can’t have it both ways, and sometimes Nazi analogies are entirely appropriate.

199 Comments

What Is The Quantum of Proof Necessary for Police to Rape and Torture you in New Mexico?

Law, Politics & Current Events, WTF?

By now you've probably heard the story of David Eckert. He's the New Mexico man who was stopped by police, detained based on a suspicion he was hiding drugs in his rectum, and subjected to increasingly intrusive anal probing and eventually sedation and a colonoscopy. You might have read about him at Simple Justice or Defending People or BoingBoing or Techdirt or Reason or any of the other places that reported on the ghastly episode.

I waited to write about it until I could get a copy of the search warrant affidavit — helpfully provided by my friend Kevin Underhill of the absolutely essential legal blog Lowering the Bar — so that I could address this question: what quantum of proof is required in New Mexico for the police and compliant doctors to rape and torture a man?

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203 Comments

Speaking At The Liberty Forum In February

Meta

I've accepted an invitation to speak at the Liberty Forum in New Hampshire in February 2014. The Liberty Forum is hosted by the Free State Project, which seeks to persuade libertarian-minded citizens to move to New Hampshire to pursue more limited governments.

Here's the talk I am giving:

Online Censorship By Lawfare: How Thin-Skinned People Abuse The Legal System To Shut You Up, And What You Can Do About It

The internet gives us unprecedented power to talk about things that are important to us. Our audience is limited only by the persuasiveness of our message and our creativity in spreading it. But some of our neighbors don’t like being criticized online. Across America, everyone from rich corporations to isolated and deranged individuals are taking advantage of a flawed legal system to shut down online speech they don’t like. Regardless of the merits of their cases, unprincipled people can and will sue you to shut you up, and their suits cost time and money. What can you do about it? Ken White is a First Amendment litigator and a blogger at Popehat.com, where he uses the “Popehat Signal” to help beleaguered bloggers find pro bono defense against defamation suits. He’ll explain the flaws in our legal system that allow this abuse, and describe what you can do to protect yourself and make speech more free in America.

I'm also participating in a panel on criminal justice issues.

We all know that the correct response to law enforcement in consensual encounters is "Am I being detained?" and "Am I free to go?" but what happens if you get arrested? What should you expect to happen if you end up going to court? This panel not only examines procedural aspects of the justice system but also deals with how to deescalate law enforcement encounters to avoid arrest and court.

I'm looking forward to meeting fellow speakers I admire like Trevor Timm and Clark Neily, among others. I'm also interested in hearing ideas that challenge me, and trying to challenge others. The Free State Project, and some of the speakers at the event, have views I don't share; I have views they don't share. But I think we all share — or should share — core beliefs about freedom of expression and the dangers of overly powerful and unaccountable law enforcement, and I look forward to exploring those topics. It's a good thing for people from different backgrounds with different views to converge on core values.

I'd enjoy meeting any Popehat readers who are there.

[Early in the new year I've also been invited to give a talk about sexual harassment prevention at a secular event, in case you think this engagement makes me too easy to predict.]

31 Comments

Government Opposes Early Appointment of Public Defender to Accused LAX Shooter Paul Ciancia

Law

Paul Ciancia, the man accused of a shooting rampage at Los Angeles International Airport, has been in a hospital since Friday. He's been charged in a rather brief and perfunctory complaint, but he hasn't made a court appearance. Since he hasn't made a court appearance, an attorney hasn't been appointed to represent him. Since an attorney hasn't been represented to appoint him, law enforcement can continue to try to question him.

The Los Angeles County Federal Public Defender's Office – which has some of the best trial lawyers I've ever seen — thought that maybe Ciancia could use a lawyer. They filed an application to be appointed in the case.

The government swiftly opposed the motion. Some of their arguments purport to be about conservation of court resources — the Public Defender can't show yet that Ciancia's family wants them appointed or that he qualifies for a court-appointed lawyer. But the heart of the government's opposition is the passage in which it shows that it understands what defense attorneys do, and what defendants do when they don't have attorneys:

The practical effect of appointing counsel at this time – other than prematurely selecting the FPD as Ciancia's legal counsel without input from Ciancia – would be to prevent the government from questioning Ciancia, as he would then be a represented party. Significantly, this would also preclude the government from questioning Ciancia, pursuant to the recognized public-safety exception to the Miranda rule, on the possible existence of co-conspirators, organizational support for his actions, and other violent plots about which Ciancia could have knowledge. . . . Moreover, the United States Supreme Court has created an investigative framework, notably in Massiah and Miranda, in which the government may question a defendant without counsel after an arrest and prior to arraignment in order to obtain information important to the investigation and to public safety. The unilateral action by the Court now urged by the FPD would foreclose the opportunity — should Ciancia so choose — to waive his constitutional rights and speak to the government about the offense prior to his arraignment. In most other cases, that brief window between arrest and arraignment would have already closed by the time of the FPD request. Ciancia’s injuries, which have prevented him from speaking with anyone and thus have enlarged that window, should not alter the investigative framework constructed by the Supreme Court.

The government is right that it can't question represented defendants without their attorney's consent. The government is right that there is a (much-abused) public safety exception to Miranda allowing very limited questioning to assess an imminent threat to public safety. The government is dead wrong — in fact, it's lying — when it says that appointing the Federal Public Defender would "foreclose" Ciancia's ability to waive his rights and talk to law enforcement. What the government means is that the government's ability to coerce Ciancia into waiving rights without the advice of an attorney will be foreclosed by the appointment of a lawyer.

The government knows very well that only a damn fool in Ciancia's position answers law enforcement questions without legal advice. The government knows that a lawyer may advise Ciancia to shut up. The government knows that advice might be in Ciancia's own best interests. The government knows that Ciancia's best play may or may not be to shut up, and that only an experienced criminal defense attorney can give him reliable advice on that decision.

The government doesn't want someone looking out for Ciancia's best interests any earlier than is absolutely required. When Paul Ciancia is questioned in a hospital bed, the government doesn't want him to make decisions based on good legal advice. The government wants Paul Ciancia to make decisions based on fear and pain, and the threats, lies, half-promises, and bullshit that law enforcement will throw at him.

Paul Ciancia is an extreme case, but an illustrative one. Remember: law enforcement officers asking you questions are not looking out for your best interests. They're often asking you to do things that they know are not in your best interest, and that they know any attorney would tell you not to do.

Shut. Up.

Edited to add: either I missed this on the docket before, or it was just added:

The Magistrate Judge has read and considered all documents submitted or filed in this case, including all documents submitted or filed in support of and in opposition to the Application. The Magistrate Judge has taken the Application under submission without oral argument. The Application is granted. It is ordered that the Office of the Public Defender is provisionally appointed to represent Defendant.

58 Comments

When Randall Met Jonathan: A Story Of A Shooting

Law, Politics & Current Events

Recently a man named Randall encountered a man named Jonathan in the early hours of the morning in Charlotte, North Carolina. Randall had a gun; Jonathan did not. Jonathan may have been agitated and confused, possibly from just having crashed his car. Their encounter concluded with Randall firing twelve times at Jonathan at close range and hitting him ten times, killing him. Neither man had a criminal record.

Prosecutors have charged Randall with voluntary manslaughter, a fairly light charge for shooting an unarmed man ten times. But Randall's supporters are outraged. They say Randall was charged too quickly, that an investigation of a man like Randall shooting an unarmed man like Jonathan ten times usually takes months. They say that charging Randall represents a rush to judgment. They say that charging Randall will chill and intimidate men like him out and about in the world from discharging their firearms in situations like the late-night encounter in Charlotte, North Carolina. They say that Randall didn't give up his constitutional rights when he walked into a police station, but he's being treated like he did. They're saying that Randall isn't getting a "fair shake" by being so quickly charged with manslaughter for shooting an unarmed man ten times. They're saying that when there's a shooting the best evidence comes out slowly, over time. They're saying Randall is presumed innocent and should be treated as such.

Are Randall's friends civil rights activists? Are they defense attorneys? Are they part of some community used to unfair prosecutions?

No.

They're police. See, Randall is a cop. His supporters are other cops, and police unions.

“People are presumed innocent until proven guilty,” said James Pasco Jr., the national executive director of the Fraternal Order of Police, “and police officers are no exception. You don’t check your civil rights at the station house door.”

He said most departments took their time with investigations because they wanted to be thorough.

“They go very carefully. One thing to remember in the case of a shooting, generally speaking, the most accurate information will come out over a period of time,” Mr. Pasco said.

“Another thing,” he continued, “is that participants in a shooting — whether they were the shooter, whether they were shot or whether they were just there — all tend to suffer to a degree from post-traumatic shock for at least a short period of time. And that’s why the best and most accurate information is usually gathered from these folks 48 to 72 hours after the event.”

Mr. Pasco is right.

Everyone is presumed innocent until proven guilty. Nobody checks their civil rights at the station house door — whether they enter there with a badge, or in handcuffs. Sometimes the most accurate information about a crime doesn't come out in the first few hours. A rush to judgment can lead to wrong assumptions, and the criminal justice system can stubbornly cling to those assumptions rather than change course once charges have been filed.

The criminal justice system ignores those ideas every day.

Will Mr. Pasco be articulating those principles next time someone is accused of assault on a police officer? Will he be articulating them next time anyone who is not a cop is accused of anything? Will any of Officer Randall Kerrick's supporters tout the presumption of innocence, or the fallibility of witnesses, or equality before the law next time they discuss a defendant who doesn't wear a badge?

Or have they discovered these principles because Officer Kerrick is one of them, and therefore entitled to things that the rest of us are not?

Randall Kerrick should receive due process of law. But he doesn't deserve it because he's a cop. Deserve's got nothing to do with it. He should receive due process of law because we should extend it to everyone, good and bad and checkered, cop and civilian. He should not receive more, or less, due process just because the thin blue line forms behind him.

47 Comments

Silk Road Update: Federal Prosecutors File Separate Forfeiture Complaint

Law

Last week I depleted our nation's critical reserves of ones and zeroes to explain the then-pending criminal charges against Ross Ulbricht in the Silk Road investigation.

There have been two meaningful developments.

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56 Comments

The Silk Road To Federal Prosecution: The Charges Against Ross Ulbricht

Law

As you already know if you follow such things, the feds have raided an online black market called "Silk Road" and charged a man named Ross Ulbricht with various federal crimes on the theory that he is its mastermind known as the "Dread Pirate Roberts."4 You can find posts discussing Silk Road's place in Internet culture at BoingBoing or TechDirt or ArsTechnica.

My task is to use the Silk Road prosecution to talk about how the federal criminal justice system works, as I've done before with Edward Snowden or Dzhokhar Tsarnaev.

Yeah, I know. Look, don't blame me if you keep reading.

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174 Comments
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