Category Archives: law

The Fourth Amendment litigation frontier, administrative warrantless search edition

Eugene Volokh:

I speculated that the reason the four Justices did not vote to grant certiorari (it only takes four votes to grant) is likely that, as Rule 10 suggests, the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals; they generally wait until there is a disagreement among federal circuit courts of appeals or state supreme courts. But they are trying to signal to lawyers that this is an issue worth litigating.

The case is Huber v. N.J. Dep’t of Environmental Protection, which now goes to the New Jersey Supreme Court:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.” 2010 WL 173533, *10. This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

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Thoughts on jury nullification, Part 1

This past week I had the fortune to attend a discussion on nullification hosted by the Show-Me Institute with my friend Mitch Richards (a representative of the Fully Informed Jury Association, or FIJA). I should note that nullification issues have been in vogue for the last few years; if I recall correctly, there was a jury nullification topic selected for high school debaters nationwide a year or two ago, and with increasing federal presence in all arenas of economic and political life there is increasing grassroots interest in the topic.

It is not my intention here to discuss the history or legitimacy of nullification issues. Such issues are more fully discussed elsewhere by others. However, I wish to discuss why I find jury nullification strategies valuable but unsatisfying.

Why jury nullification is valuable: It can be used to protect individuals from prosecution under unjust laws, by unjust governments. Note that I say “can” here; despite the functional reality of the existence and the popularity of nullification strategies, it is not certain that they can even be used in many real-life contexts. Moreover, there is no reason to think that juries will only attempt nullification of unjust laws; juries can act in unjust ways. However, as an additional recourse for citizens being unjustly prosecuted by their government, the nullification option is valuable at an important margin.

But the popular focus on jury nullification strategies is very unsatisfying to me. It ignores the pragmatic reality of criminal justice system operation and legislative lawmaking. In particular the nullification discourse completely ignores the agency incentives that determine how laws are actually interpreted and applied by government agents. It is this incentive structure we must understand and seek to change; otherwise nullification efforts will always be stop-gap, low-level efforts against specific laws. Nullification strategies are like using your hands to swat mosquitoes; you might kill individual mosquitoes but that’s of little comfort when you’re in a swamp.

It would be of more practical use to try to pursue other strategies if we are really interested in constraining the justice system to minimize the number of unjust outcomes.

There are two ways in which I see this can be done. First, reformulate the incentive structures facing prosecutors. Second, make it harder for government officials to use official or qualified immunity as a shield from liability. I will be exploring these two policy prescriptions at length in further posts, so stay tuned.

 

Mitch Richards on warrantless administrative searches

My friend Mitch Richards is running for the First Ward seat in the city council elections this April 5th in Columbia, Missouri. I thought I would share this clip of him discussing warrantless administrative searches and other property rights issues at a candidate forum earlier today.  You can check out his website here: http://mitchrichardsforfirstward.com/

Bonus: Mitch quotes from both the Declaration of Independence and the Constitution without being cliche.

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My testimony to the Citizens Police Review Board in Columbia, Missouri, 2-9-2011

My name is Eapen Thampy. I am the executive director of Americans for Forfeiture Reform, a nonprofit that works on issues of asset forfeiture, an issue implicated deeply with the emergence of paramilitary policing in America. We have been endorsed by groups on every part of the political spectrum. Some of these groups include the Missouri Libertarian party, Ed Rosenthal’s Green Aid Marijuana Legal Defense Fund, and the conservative Right on Crime initiative, a project of Newt Gingrich, Grover Norquist, Ed Meese, and Pat Nolan.

Last May I was one of the many people at city council speaking in protest of the Kinloch raid; today I return to this chamber to ask again that we pursue a more sensible approach to policing in Columbia. Over the last year, as light has been shone on paramilitary policing practices in Columbia and around the nation, many thousands of people have contacted us, asking us to speak on their behalf, and bear witness to the harms that uncontrollable police agencies can do to their communities.

At the outset, it is important to note what we want. We want a strong and effective police presence, we want a fair and impartial justice system, and we want every man, woman, and child in America to be able to enjoy their freedoms in this brave land. We do not oppose the rule of law; rather, we wish to see it flourish. We honor and respect the sacrifices of all who serve to protect us, but we will not compromise on the high ideal we must hold our public servants to.

Nor do we intrinsically oppose the existence of SWAT teams. They exist for specific reasons: hostage crises, gun rampages in schools and public areas, to combat the threat of organized violent crime. Situations where a SWAT team might be required are by definition extraordinary.

But the emergence of SWAT policing in America and in Columbia indicate that these real needs have been corrupted by the perverse incentives provided by the War on Drugs and Columbia’s own dysfunctional police force.

SWAT policing, as I noted, is a far cry from routine policework. Most small jurisdictions do not need their own SWAT team. However, over the last twenty years, almost every medium to small police department or sheriff has managed to obtain their own SWAT teams, often without citizen approval or request. Moreover, the weapons and armor available to a SWAT team are fairly heavy duty and very expensive to operate and maintain.

A SWAT team is an expensive proposition. To simply get the APV out of the garage and back is a minimum of $2,000. Some of the raids Columbia SWAT have been involved in were on holidays; that means triple hazard, overtime, and holiday pay.

The most perverse part of SWAT policing may be the funding mechanisms that allow it to happen. Federal law allows Columbia police to seize property without proving a crime or obtaining a conviction; moreover, federal law allows Columbia police to keep this money directly, in violation of Missouri constitutional law and Missouri Supreme Court precedents that delegate seizure money to Missouri’s schools. The name of the program is Equitable Sharing, and over the last several years Columbia Police have received hundreds of thousands of dollars with essentially no oversight.

During the last year I have investigated the 106 SWAT warrants Columbia narcotics police served between January 2007-May 2011. You may view the map of these raids at

http://forfeiturereform.com/2010/11/16/columbia-police-department-swat-raids-in-columbia-missouri-2007-may-2010/

Here is Brennan David from the Columbia Tribune (http://www.columbiatribune.com/news/2010/jun/27/swat/):

Columbia’s SWAT team served 106 narcotics search warrants between Jan. 1, 2007, and May 11, 2010. The Tribune, through an open records request, received 99 of those search warrants; the others were considered closed records for various reasons.

Of the 99 SWAT narcotics search warrants granted by the Boone County Circuit Court to Columbia police, officers executed 43 percent of them within hours of being issued. Of those, 65 percent resulted in one felony arrest, and 18 percent resulted in misdemeanor arrests.

But the percentage of warrants producing a felony arrest dropped drastically to 37.5 percent when investigators waited one day before serving the search warrant. In those cases, 50 percent produced misdemeanor arrests.

I would also direct the CPRB to the video of another Columbia SWAT raid in 2008 (http://www.youtube.com/watch?v=05gLm6mSZ5M). In this raid, a family is at home when the SWAT team visits; you can see Columbia’s finest holding women and children at gunpoint. There is even a moment of pure incredulity at 7:30, where an officer handcuffs the elderly woman sitting in the bathroom, telling her that she is not under arrest and not in any trouble.

In this raid, 3-4 crack rocks were found, along with some minor paraphernalia. No weapons or evidence of trafficking were found, and despite the prior record of the men who were the target of the warrant, no indications of violence are provided that might justify a SWAT raid on this house in this manner. The woman who was not “arrested” ended up being charged with a paraphernalia possession charge; initially, she pleads not guilty until the court appoints a public defender for her, who negotiates a plea deal with the prosecutor instead of defending her in a court of law. Justice is no longer weighed by a judge in a court of law; it is held at gunpoint before being negotiated in the prosecutor’s office.

No government official here had any incentive to check the wrongdoing, misconduct, or negligence of other government officials.

Other Columbia SWAT raids bear similarly striking details. I have interviewed victims of at least 10 of these raids, who have asked me to bring you parts of their stories. Many of them are fearful that they will find themselves being retaliated against, and none are willing to give me permission to use their names. I have heard and verified tales of SWAT raids being used as retaliation for petty offenses or to put competitors out of business both legal and illegal.

This kind of enforcement is incompatible with the principles of Justice, or of her sister, Mercy.

It is important to note a contrast that I hope illustrates more clearly the problem we face. Boone County Sheriff’s Department does not generate the kind of lawsuits and publicity that Columbia Police Department does. There are a couple structural factors at work here: Columbia Police Department has had an incoherent series of transitions from one police chief to another over the past decade, leaving CPD with dysfunctional leadership and command structures that never had time to build or find the values that law enforcement must have to perform effectively. BSCD, by contrast, has a smaller, more stable force, with much more organizational integrity and continuity of leadership.

We have a few recommendations for the CPRB:

  • First, recommend that the use of SWAT raids for non-violent offences be strictly prohibited.
  • Second, recommend that any SWAT action be fully videotaped. This will allow the city to limit its liability from future civil lawsuits by demonstrating that the city has fulfilled its duty to ensure that any use of force has been accompanied by sufficient checks on its use.
  • Third, recommend that all seizures related to criminal activity be documented, strictly accounted for, and deposited into the School Building Revolving Fund as per RsMO 166.131.
  • Fourth, recommend that the city council refuse any federal funds deriving from seizure or forfeiture funds. Federal funding may be important for emergencies, but seizure money comes to our police free of civilian oversight or legislative control. This undermines our ability to influence policy at the police department. Moreover, un-appropriated funding undermines our ability to control the city budget, particularly when it is used to purchase weapons and equipment that must then be maintained with city funds over time.
  • Fifth, recommend that the city council establish the protocols for enforcement of Columbia’s ordinance regarding cannabis offenses, with particular regard for the rights and safety of chronically ill or incapacitated patients. We understand that the implementation of this ordinance poses problems from a law enforcement perspective, which is why it is important that these directives come from civilian leadership. In this way our police can avoid the criticism of how their enforcement protocols may sometime provide conflicting imperatives.

Finally, please consider the words of Missouri Supreme Court Justice William Ray Price in his address to the Missouri Legislature today (emphasis mine, available here: http://forfeiturereform.com/2011%20state%20of%20the%20judiciary%20-%2002-09-11%20-%20FINAL.pdf):

From the 1980s, in Missouri and across the nation, we attempted to incarcerate our way out of crime and illegal drug use. We thought just putting people in prison would make them better or scare them straight. We spent billions of dollars and it did not work. We were tough on crime, but we were not smart on crime. Consider these numbers.

In 1982, 612,000 people were behind bars in state prisons across the country. By 2008, that number had risen almost fourfold to 2.3 million people. In 2010, the United States incarcerated a higher share of its population than any other country in the world. The cost has been staggering. State correctional spending across our country increased from $11.7 billion, in 1988, to $47.3 billion in 2008. (One in 31 The Long Reach of American Corrections, The Pew Center on the States, http://www.pewcenteronthestates.org; The High Budgetary Cost of Incarceration, Center for Economic and Policy Research, June 2010, http://www.cepr.net)

There is a broader debate here over how we approach crime of any nature. I ask you to dare to be smart on crime and engage the broader issues of Drug War reform and incentive-compatible policing in your evaluation of these issues of police conduct and misconduct.

I furthermore recommend the following experts on 4th Amendment law and paramilitary policing:

Radley Balko, former Cato Institute scholar and senior editor of Reason Magazine; expert on SWAT raids and paramilitary policing (radley.responses@gmail.com)

Orin Kerr, Professor of Law at George Washington University; expert on criminal law, asset forfeiture, and Fourth Amendment law (okerr@law.gwu.edu)

John Payne and Audrey Spalding, policy analysts at the Show-Me Institute; asset forfeiture and SWAT raids (john.payne@showmeinstitute.org, audrey.spalding@showmeinstitute.org)

David Roland, lead litigator at the Freedom Center of Missouri; expert on Missouri and US constitutional law (dave@mofreedom.org)

John Chasnoff, Eastern Missouri ACLU; expert on SWAT policing and Fourth Amendment law (john@aclu-em.org)

Peter Kraska, Eastern Kentucky University, expert on SWAT policing (peter.kraska@eku.edu)

Please contact me for any clarification or if you have questions.

I am respectfully yours,

Eapen Thampy
Executive Director, Americans for Forfeiture Reform
3630 Holmes St., Kansas City, MO, 64109
Phone: 573-673-5351
Email: Eapen@ForfeitureReform.com or Eapen.Thampy@gmail.com
Web: http://www.forfeiturereform.com and  http://www.facebook.com/ForfeitureReform

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Papers that need to be written: the property rights frameworks of origin myths

Quick thought: A culture’s origin mythology is usually the basis for much of its legal architecture. As LLSV (1997) note, there are some legal architectures that are vastly superior to others (and they discuss a lot of comparative data on civil vs. common law regimes). Common law regimes are generally superior to civil law regimes in terms of economic and human welfare outcomes. Part of the argument is that common law regimes tend to be principle-based, with legislatures making laws and courts deciding dynamically how the legal principles, the law, and the specific case interact; this allows common law regimes to efficiently catalyze economic development through the efficient evolution of things like tort law. Common law regimes also tend to conceptualize property rights in far more generous terms than civil law regimes. Civil law regimes delegate a lot more importance and foundation to legislative law; you can think of the legislative law as creating lines on a court and judges as referees who are limited to far more technical calls. Civil law regimes tend to be inflexible and less efficient, though there are many unanswered questions. You can think of America or Britain as modern bastions of common law, and French law as a good example of a regime based on civil laws.

So here’s the challenge. Origin myths are foundational “oral constitutions” that provide direction for the legal architecture of a culture. We can analyze some basic ways in which they differ through their conceptualization of property rights, and then look at outcomes. There should be some very interesting comparative work to be done in all directions there, I’m sure, and there is a lot of data in human history, so there should be a lot of interesting natural experiments that can be surveyed.

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Thoughts on the ontology of Prohibition and origin stories

I was thinking about the notion of Prohibition lately, and realized there was a valuable insight to be garnered from the telling of the Original Prohibition story, or at least the way I see it.

What I refer to as the Original Prohibition, of course, was Adam & Eve’s experiment* with the mind-altering “fruit of the tree of the knowledge of good & evil”. And here is the crux of the story. It is a story about free will, and about how divine and human will interact, and the consequences of your choices.

I have the suspicion that many people (on both the right and the left) receive this narrative and think that the lesson from the story was that God’s Prohibition was not strong enough. It was not strong enough because it did not work to prevent our prototypical human ancestors from making a choice that brought misery and the profane to human existence. If Adam & Eve could have been prevented from eating that fruit, perhaps, the human race would not be in this ambiguous, pitiable state of earthly existence. The divine would be the sole content of human experience, and who wouldn’t want that?

But having the freedom to choose involves the awkward notion of living with the consequences of your actions. Not the false, legal, human-created consequences (at least in consensual actions where there is no victim), but the consequences of living with the knowledge, and the impact of your free will.

I have the sense that people who support prohibitions on consensual, non-tortuous activity really have the mindset that if we can just engineer society to this end or that end that we can prevent all bad outcomes, all miserable outcomes. But this is the worst kind of foolishness. Society is best served by criminalizing tortuous behavior, not non-tortuous behavior. To criminalize non-tortuous behavior is to subsume the notion of free will and human choice beneath the spectre of a glorious and impossible future.

The end result of criminalizing consensual, non-tortuous behavior, is that you create markets and industries that are dependent on the existence of the law and the need for its enforcement and not the real demand for goods and services by individuals. Ultimately, you can criminalize the entire canon of human activity through some extension of the law. The phrase “slippery slope” is appropriate here.

This is the ugly machine of fascism. It is the request to abrogate your rights and your choices for the ever-greater pursuit of security. But it is an ontological abyss. From a vantage point above, one can see the Gulag below, the (in)evitable promise of the Soviet Dream.

*One might replace the Judeo-Christian origin story with any of the many other different origin stories of similar structure and plot for the purposes of this argument.

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Fit to print, or fit to cover-up? Against Karl Miller

Karl Miller writes in his Missourian editorial that he is “siding with Chief Burton” on the manner in which the Dresner affair was handled. Miller has many things to say, but I wish to focus on the mistake Miller makes in describing this situation is as “a purely personal matter”.

It is clear to me that the only “purely personal” part of the story is the love story between Columbia Deputy police chief Tom Dresner and Columbia Police Public Information Officer Jessie Haden. Karl Miller is right to say that this is a personal matter. But official misconduct is not, and unfortunately Tom Dresner is guilty not only of the offense of conducting a secret affair with a direct surbordinate, he is guilty of compromising his integrity as a public servant, and that is a far more public issue that deserves to be addressed. We might ask the following follow-up questions:

  • Did Tom Dresner and Jessie Haden use a motel for their rendezvous, or city facilities?
  • Did Tom Dresner and Jessie Haden conduct their affair on the city’s clock, or did they manage to keep everything for after work?
  • Did other officers know about this affair, which was conducted over a period of at least 7 years?
  • If other officers knew, why did they choose to keep the misconduct of a superior officer under wraps?
  • If other officers knew about the affair, were they ever in a position to put the screw on Dresner to cover up misconduct or to obtain promotions and other favors?

Karl Miller might retort that there is no reason to believe that Tom Dresner and Jessie Haden ever did more than conduct a totally secret affair on their own time and property and that Dresner’s integrity is otherwise intact. Unfortunately, this is not the case either. We have known for years that the police department was structurally dysfunctional; it was only in the last two years that the police had a functional Internal Affairs division, and the only external check on internal misconduct is a toothless and ineffective Citizens’ Police Review Board.

This is the important point. It is the structure of the police department that is our true enemy here, not the individual officers. There are individual officers in Columbia’s police department who deserve prosecution and public shaming, but without reforming the structure of the police department, Columbia will continue to see lawsuits over the conduct of its police officers and the protocols that guide them.

 

 

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Against the King of Great Britain

Please leave a comment.

From the Declaration of Independence, July 4, 1776:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

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Dan Viets on search warrants and violence in Columbia, Missouri

Dan Viets Attorney and Counselor

15 NORTH TENTH STREET COLUMBIA, MISSOURI  65201 (573) 443-6866/FAX (573) 443-1413

Dear Friends:

As most of you are probably aware, the Columbia Citizens Police Review Board has agreed to take up the appeal of our complaints regarding the Kinloch Court incident this Wednesday evening, August 11 at 7:00 p.m. in the City Council Chambers in the new addition to the Daniel Boone Building.

Last week, the complainants were not allowed to speak before the commission.  The Chairwoman had told me that this may or may not change at this meeting.  It is likely there will be an opportunity for us to speak, but it may be after the Board has made its decision.

I know of no reason to expect that the Board will change its position.  The Board voted four to three last week to accept the decision and report of the police chief.  However, if the Human Rights Commission has replaced the member who recently resigned from the CPRB, that could change the outcome.

At any rate, it is my recommendation that we ask the CPRB to agree to investigate the question of whether search warrants should ever be used in the investigation of non-violent crime.  The CPRB is focused on the technical question of whether the complaint against the individual police officers has been properly handled.  I recommend that we ask them instead to look at the broader policy question and consider making recommendations for a change in the policy.

The execution of search warrants is an inherently potentially violent process.  The execution of a search warrant involves a home invasion.  Whenever a home is invaded, there is a real risk that the occupants of the home may respond with violence before they even realize that it is police officers who are invading their home.  The occupants of the home invariably are truly terrorized by people battering their door open, pointing firearms at them and screaming at the top of their lungs.  Frequently concussion grenades, referred to by police as “flash bangs”, are thrown near or inside of the home for the purpose of further disorienting the occupants.

There are alternative means for investigating such matters.  There is almost always a claim of an anonymous or confidential informer in the application for such search warrants.  That individual should be required to make a controlled buy of marijuana, either under surveillance or with recording or transmitting equipment.  This is commonly done and involves far less risk to the police and the occupants of the home.

I look forward to seeing you this evening.

Sincerely,

Dan Viets

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I know what this says, but what does it mean?

Section 79.200, RSMo 1994, provides:

79.200. Mayor shall have the power to enforce laws. – The mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the city, and he shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty; and he is hereby authorized to call on every male inhabitant of the city over eighteen years of age and under fifty, to aid in enforcing the laws.

The excerpt is from a 1996 opinion written by Jay Nixon, Missouri’s Attorney General at the time. I am not qualified to interpret the meaning of this law, and I’m quite honestly curious…what, precisely, does it mean that the mayor can “call on every male inhabitant of the city over eighteen years of age and under fifty, to aid in enforcing the laws”?

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Recommended

Sunshine in Missouri, a blog written by an attorney who is interested in Missouri’s Sunshine law that allows open access to public records.

I had the rare thought while paging through that this is one of the few blogs I wish were updated more often.

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Why would Columbia Police Department delay the execution of 57% of SWAT search warrants between 2007-2010?

Brennan David at the Columbia Tribune writes:

Columbia’s SWAT team served 106 narcotics search warrants between Jan. 1, 2007, and May 11, 2010. The Tribune, through an open records request, received 99 of those search warrants; the others were considered closed records for various reasons.

Of the 99 SWAT narcotics search warrants granted by the Boone County Circuit Court to Columbia police, officers executed 43 percent of them within hours of being issued. Of those, 65 percent resulted in one felony arrest, and 18 percent resulted in misdemeanor arrests.

But the percentage of warrants producing a felony arrest dropped drastically to 37.5 percent when investigators waited one day before serving the search warrant. In those cases, 50 percent produced misdemeanor arrests.

“This does not surprise me,” Dresner said. “I think the nature of drug sales is that it is a very immediate transaction. For consumers and dealers, once there is a product available, it travels fast, and sales occur very quickly.”

What isn’t being said here is very important. It’s that the police have financial incentives to delay the execution of a warrant, particularly when illicit substances are present. They’d rather serve the warrant when they might find a suspect in possession of large quantities of cash, which they can seize through a civil procedure without the trouble of obtaining a conviction. This is particularly true when cannabis exclusively is involved; it is not a dangerous substance, and complaints relating to its distribution are usually related to the amount of traffic, not the hazard of the plant itself. The proceeds of these seizures can be retained for the Columbia Police Department’s budget through a loophole that allows the federal government to appropriate these seizures and disburse cash and equipment back to the Columbia Police Department. In the last ten years, the Columbia Police Department has received roughly $210,000 from the Department of Justice’s Equitable Sharing Program, though that figure does not capture the full amount of money benefiting law enforcement free of legislative stipulation and civilian oversight. The Missouri Constitution (Article 9, Section 7) mandates the proceeds of these seizures be sent to education, but with the involvement of the federal government and the laxity of legislative oversight this constitutional requirement is circumvented with ease and negligible oversight.

In other words, the Columbia Police Department has for years been pursuing low-level crimes with SWAT raids not for the purpose of making this community safer, but for the purpose of obtaining funding for all the things their budget doesn’t give them. As the United States Appellate Court for the Fifth Circuit said in 1992:

As was obvious at the oral argument of this appeal, each member of the court was deeply disturbed by the actions of the federal and state agents in appropriating Scarabin’s money — candidly acknowledged by counsel for the DEA — actions that would have constituted illicit money laundering if perpetrated by private parties. We were even more distressed by the revelation that those activities were not merely condoned but were actively advocated and supported by officials of the DEA in positions to make and implement policy.

Money laundering indeed. I want to point out that civil forfeiture came into the law enforcement toolbox during the 1980′s, when the government started taking on the Mafia and other large, sophisticated organizations. We forgot, however, that when we went beyond the Constitutional protections against unwarranted search and seizure that our law enforcement stopped acting like law enforcement and began behaving like the criminals they sought to prosecute.

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Virginia sheriff under investigation for embezzlement from asset forfeiture funds

From WAVY in Virginia:

The Middlesex County sheriff is being investigated by police for allegedly using county and state funds for himself.

Search warrants were filed in Chesapeake court this week for a BB&T account and a Wachovia account, one belonging to the Sheriff Guy Abbott’s forfeiture account, the other to what appears to be his personal account.

“I would hate to think that people that are suppose to protect us would go ahead and do something like that,” said Middlesex County resident Dee Bookins.

Investigators searched bank statements, signature cards, deposit slips and checks dating back 10 years. They found evidence to support allegations of embezzlement and misuse of county and state funds.

Those funds were allegedly allocated for personal use by county officials, namely Abbott.

Evidence included receipts from the Middlesex County sheriff’s office asset forfeiture account and reports Abbott sent to the Virginia Department of Criminal Justice Services.

There were also 21 itemized Mastercard statements between 2000 and 2002.

Virginia’s forfeiture laws are pretty loose. The Institute for Justice’s recently published 50-state report on forfeiture laws awards Virginia a D- and notes that Virginia lets 100% of forfeiture proceeds directly go to law enforcement; over most of the last 15 years this has sent an average of $7.2 million to law enforcement each year. Most of this money, if not all, has negligible civilian oversight, and it is often too easy to hide money in different funds, property, and other tangible assets that directly benefit individual law enforcement officers. It’s nice when you get to use the company car; it’s sweet when your work gives you under-the-table cash bonuses, SUVs, and unregulated expense accounts if you can keep making seizures of property from people who are too poor or politically weak to defend themselves in court.

Cross-posted at Americans for Forfeiture Reform.

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Feds file civil forfeiture actions against Madoff employees

Forbes reports:

The feds have launched civil forfeiture actions seeking $5 million allegedly held by two former back-office workers at Bernard L. Madoff Investment Securities LLC. U.S. prosecutors in Manhattan say Annette Bongiorno and Joann “Jodi” Crupi both spent more than 25 years working for Bernard Madoff’s now tarnished investment firm.

Bongiorno handled BLMIS clients’ questions about their investments, and allegedly oversaw fabrication of documents like account statements and trade confirmations. The government wants her to fork over $1.1 million in accounts at mainstream banks like HSBC; the nearly $300,000 she spent on a 2005 Bentley and a 2007 Mercedes Benz; and $1.3 million that went to a swanky condo. According to court papers filed by prosecutors, Bongiorno began spending much of her time in Florida and working a heavily reduced schedule starting as early as 1995, but was still making six-figure annual salaries over the course of the firm’s last decade of existence.

Crupi was responsible for client redemptions and allegedly was involved in funneling investors’ money through a chain of bank accounts controlled by BLMIS as part of its elaborate Ponzi scheme. The feds say she’s on the hook for the $2.25 million in cash she used to purchase a home in Mantoloking, N.J., and $26,500 in rental income she’s earned after buying that property.

Here’s the problem. It clearly appears that these employees are guilty of real crimes; if Forbes is right that Bongiorno for instance oversaw the fabrication of documents, then there should be plenty of ground for criminal charges. Civil forfeiture actions are inappropriate; any restitution for the crimes should come through fines tied to a criminal sentencing for Bongiorno and Crupi.  Keep in mind that we get the same result (forfeiture of property tied to illicit income) either way.

Civil forfeiture actions are inappropriate because they presume guilt, and because they’re an easy way for prosecutors to avoid the work of actually obtaining convictions in a court of law. Civil forfeiture does not require a trial, just a civil hearing, at which the defendants have to prove the innocence of their property instead of the government proving the guilt of the defendants beyond a reasonable doubt.

Civil forfeitures sound innocuous (after all, why not just take the property implicated in illicit transactions?) but in practice is a mechanism that allows the government, on both the federal and the state levels, to just take property from people without the due process protections that a criminal trial entails. As you might guess, civil forfeiture ends up being used even when there is no actual crime alleged against a citizen and this happens a lot more than one might guess (millions of dollars of forfeitures are vested against people who are never convicted of a crime every year).

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No budget? No Problem!

Found this brochure for an asset forfeiture conference aimed at state and local law enforcement. The location of the conference is Hollywood, Florida during April 15-16 2009. The brochure advertises a variety of seminars designed to educate local law enforcement about the forfeiture process and how to turn seizeable property into money that goes to law enforcement budgets.

Most tellingly, the brochure starkly proclaims that law enforcement can become self-funding free of legislative constraints:

In last twenty years economists from Oliver Williamson to Ronald Coase famously declared “Incentives matter”. And we are learning that they do matter very much, particularly in terms of how institutions and structures function. If structures like representative democracy need clear and distinction separation of powers to function well (if at all), then they need to happen through incentive-compatible channels. Democracy itself breaks down when executive branch agencies conduct their affairs in obscure and impermeable fashions, obtain funding without regard for legislative stipulation and judicial mandate, and lose the incentives to listen to the communities that they serve.

Because when the federal government helps law enforcement pay their bills free of our consent, we lose the ability to shape the policies that guide our law enforcement. Now federal dollars incentivize law enforcement to prioritize cases and methods that result in property they can seize, rather than prosecute crimes of violence that are less lucrative. We serve search warrants on people who have never been implicated in the least hint of violence with paramilitary squads in the land where Patrick Henry once declared “Give me freedom or give me death”. In Missouri, our legislators and judges told us that crimes where fines or forfeiture happened would be prosecuted fairly and the money given to schools, to help the young do greater things that we can. This is no longer the case, and we are incalculably poorer for it.

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