Archive for the ‘Fourth Amendment’ category

“Real Men Of Genius”

May 17, 2007

Today we salute you, Mr. Moronic Mule:

Birmingham Police Wednesday announced the seizure of 7 kilos of cocaine and the arrest of two men from a Tuesday morning traffic stop on Interstate 20/59.

Captain Michael Fisher, head of the department’s vice and narcotics division, said the cocaine has a street value of $175,000.

The men whose, identities were not released, have been arrested, but not charged. They are being held in the Birmingham City Jail, Fisher said.

The drugs were discovered in hidden compartments during a traffic stop after the men were pulled over for speeding in a 1995 Buick Park Avenue. They were near the 1st Avenue North exit on I-20/59 and said they were en route to Atlanta from Dallas.

The men, who displayed suspicious behavior, consented to a search.

O.k., the speeding is dumb enough. But why in the h-e-double-hockey-sticks would they consent to a search when they knew they had umpteen thousand dollars worth of cocaine in the car? When I was in law school and read about stuff like this, my reaction was always something like “yeah, they ‘consented,’ right, during a beat down, maybe.” Now, though, I’ve interviewed enough clients to know that, nope, these guys probably just went ahead and told the cops to search the car. Why? I still don’t know, but for some reason people in that situation think it’s going to help them if they let the cops search the car. Like the cops are going to say “Oh, well, we found all this cocaine, but because you were honest with us, we’ll let you go this time.” As these guys are in the process of finding out, that’s delusional. When it comes to requests to search, the only safe response is to just say no.

Anyway, criminals don’t have a monopoly on stupidity. The second salute is to this swat team (thanks Loretta):


Update: “No Child Left In Handcuffs”

January 23, 2007

Back in August, I posted about a lawsuit in which an elementary school student was suing the school resource officer because the sro, in response to the student’s smarting off to a teacher, cuffed the student and threatened to throw her in jail.

A reader sent me a link to the results of the lawsuit:

An Alabama police officer did minimal harm to a nine-year-old girl by handcuffing her after she threatened a teacher, a jury has ruled, awarding the student only $1 in damages.

Laquarius Gray prevailed in the liability portion of a one-day trial on her civil rights claim as U.S. District Judge U.W. Clemon found that, as a matter of law, the officer illegally detained her during a physical education class at a Tuscaloosa elementary school.

Sheriff’s Deputy Antonio Bostic, who worked as a resource officer at several schools, claimed he heard Gray threaten to punch a coach who was trying to get her to do jumping jacks exercises. “[T]his is how it feels to be in jail,” he told her while she was in handcuffs for at least five minutes.

But on the issue of damages, the jury apparently agreed with the defense, which argued in a briefthat “the Defendant did not cause anything more than de minimis physical injury to the Plaintiff.” Gray’s lawyers presented no expert testimony on damages.

The nominal compensatory award amounts to less than a slap on the wrist for Bostic. Last year, the 11th U.S. Circuit Court of Appeals said Gray had suffered “an obvious violation” of her Fourth Amendment rights in denying summary dismissal of the case.

“[T]he handcuffing was excessively intrusive given Gray’s young age and the fact that it was not done to protect anyone’s safety,” the opinion said, concluding that, “Every reasonable officer would have known that handcuffing a compliant nine-year-old child for purely punitive purposes is unreasonable.”

This does not mean Bostic escapes all responsibility for his unlawful actions.

Congress long ago realized that 1) every violation of a constitutional right is a serious matter, but 2) those violations sometimes don’t result in monetary harm, and 3) going to court is an expensive process. So, to encourage the vindication of rights, Congress provided (at 42 USC 1988) that prevailing parties in civil rights cases can recover their attorney’s fees from the losing side. And, as this case illustrates, that is perfectly fair. Someone has to bear the costs of vindicating the victim’s rights, the question is who: The victim of the unlawful activity? The attorney who spent his time and effort arguing the victim’s case? Or the bad guy? Surely it ought to be the bad guy. After all, the whole situation is his fault.

Anyway, given that in this case the liability was clear and that it has involved all the time and energy of an appeal to the Eleventh Circuit, those fees ought to be fairly substantial.

Another Reason To Home School

January 3, 2007

This probably won’t bother many folks, but I think it’s interesting:

Sophomore Josh Reeves arrived at Gulf Shores High on a routine morning and was quickly summoned to the office. Once there, Reeves learned he must immediately provide a urine sample as part of the school’s random drug-testing policy. Reeves — a fullback on the Dolphins’ football team and an infielder on the baseball team — stepped into the restroom and returned to class minutes later.

“I like it because it keeps everybody straight,” Reeves said of the testing procedure. “It really didn’t matter to me. The kids that don’t do drugs don’t care about it, because they know they’re not going to get into trouble. The kids that do do drugs, they don’t like it because they will get in trouble.”

There’s also a third group of people, like myself, who really resent being treated as a criminal despite the absence of any individualized evidence, or even suspicion, that they’ve done anything wrong. Unless the authorities – in this case the school – have some concrete evidence that a particular person has violated a clear rule, then the authorities ought to be required to leave that particualr person the heck alone.

But those of us who place a high value on individual freedom and dignity have already lost the battle over school drug testing. Scotus has upheld random drug tests in schools: Vernonia School Dist. 47j v. Acton upheld tests for athletes and Board of Education v. Earls upheld random tests for students involved in any extra-curricular activities.

Both cases reasoned that because school students are already subjected to thorough control and the tests were used in a very limited manner, the tests were reasonable under the Fourth Amendment. Justice Scalia, writing in Vernonia:

Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self determination–including even the right of liberty in its narrow sense, the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am.Jur. 2d §10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status. As Blackstone describes it, a parent “may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1769). . . .

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” Skinner, 489 U. S., at 626. We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Ibid. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

The other privacy invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. See Skinner, supra, at 617. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.

It sounds like the Baldwin policy is in accord with these Scotus cases. The tests are completely private, the results are not included with the student’s academic record, and then they are destroyed upon graduation. Most importantly, there is no invlovement of law enforcement.

Each student is given a unique, computer-generated number that is different from his Social Security number — a safeguard that Assistant Superintendent Terry Knight said is intended to guard against identity theft. A computer program at EDPM randomly selects the numbers. The student’s unique number — not the student’s name — is attached to the sample. “No one at the lab knows the identity of the urine sample,” Ash said.

Ash said urine samples are the most reliable form of drug testing, as opposed to blood tests or hair samples. Students being tested go into a restroom stall and provide a urine sample, Ash said, and a trained technician then takes the specimen. The urine is then divided and sealed into an A sample and a B sample. The A sample is sent to one of 61 federally approved labs for the drug screening. Ash said that the gas mass spectrometry test used to confirm results is accurate in its findings to one in 10 million.

If a test comes back positive, the student’s parent is contacted. The student is not affected by a positive result if he is taking over-the-counter or prescription medication that explains the test outcome. If a parent disputes the positive test, the B sample will be sent to a separate lab and tested with the same meticulous method. “This is designed to give the student maximum protection,” Ash said.

Drug-testing records are not attached to the student’s academic transcript, and are destroyed when the student graduates, Knight said. “We shred all of those records, and all that will be erased from the computer bank once they leave high school,” he said. “It doesn’t affect their grades in any way. The only thing it will affect is their extracurricular activities and driving. … Law enforcement will not be involved in any way.”

I can live with this. Don’t like it. Think it teaches kids they belong to the state, rather than the reverse. But I can live with it.

This Is A Good Day For Terrorists

August 17, 2006

That and the usual anti-judiciary catch phrases will soon be thrown around by our nation’s demagogues and their slavish followers, because U.S District Judge Anna Diggs Taylor just told King George that yes, he is subject to the law, and no, he can not unilaterally wiretap our phone lines. The story, with a link to the opinion, is here. My favorite part is this:

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

If you’ve gone to law school, or are else you just pay a lot of attention to arguments about the constitution, you know just how funny that statement is.

Long ago, Scotus said that Connecticut’s statute prohibiting birth control violated the constitutional right to privacy. Wherein lay that right? In the “penumbras” emanating from the entire text of the Bill of Rights. Since then, that phrase has been mocked, ridiculed, and rejected by so-called strict constructionists everywere.

George Bush, of course, has pledged on more than one occasion to appoint only judges who strictly construe the law; judges who would scoff at the idea of penumbras. So to hear George Bush’s arguments for absolute power called exactly what they are – the thing he says he hates – is just too funny. You can’t have it both ways, Georgie boy.  

Update: Here‘s a great example of the oh-so-typical, but oh-so-predictable response I mentioned:

I figured Judge Anna Diggs Taylor, a 73-year-old Jimmy Carter appointee, would have the chutzpah to overturn the NSA wiretapsand rule in favor of the ACLU and its raft of Islamist, America-hating plaintiffs. And she did not disappoint my low expectations of her.

Reactions by similarly simple minded goobers are catalogued here. Thoughtful responses are here, and here. My opinion is pretty much the same as this one:

Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. . . .

It is quite clear that the government will appeal this opinion, and because the court’s opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.

No Child Left In Handcuffs

August 8, 2006

Alabama’s schools are in the news today:

An impressive 87 percent of Alabama’s 1,364 public schools met state standards in reading and math, according to the latest progress reports of test results released Monday.

The local districts were no exception

More area schools met all of their academic goals this year, according to progress reports released Monday by the state Department of Education.

Jefferson County had 92 percent of its schools to meet all of their goals, up from 57 percent last year.

In Shelby County, 97 percent of the schools met their goals this year, up from 70 percent last year.

Birmingham this year had 80 percent of its schools to meet their goals, compared to 40 percent last year.

Under the federal No Child Left Behind law, schools must make adequate yearly progress, or AYP, each year on state assessments. Schools must meet state goals in reading, math and additional indicators. If any school fails to make AYP two years in a row in the same component, it enters school improvement status.

All three districts met AYP this year.

You can get commentary here, and here. My opinion? The results mean teachers have improved at feeding random facts to students, and students have improved at regurgitating them on standardized tests. Does that mean anyone is getting a better education now than they would have five years ago? Who knows.

Anyway, the real reason for this post is a case recently decided by the Eleventh Circuit.

Basically, during gym class at a Tuscaloosa school, nine (9) year old Laquarius Gray was not properly performing her jumping jacks. The teacher – Coach Williams – told her to go stand near a wall. She responded with something like “I bust you in the head.” Coach Williams and another coach, being  grown men, in no way felt threatened by the nine (9) year old’s empty words:

Neither Coach Horton nor Coach Williams was afraid of Gray or believed that Gray would actually carry out her threat. When asked whether he was “ever afraid that [Gray] would commit an act of violence towards [him] or Ms. Horton,” Coach Williams replied, “No, sir.” Similarly, Coach Horton replied “No,’ when asked if she was “ever afraid that Ms. Gray would physically assault you or another student?” When asked, “[W]hen Ms. Gray told Coach Williams that she was going to bust him in the head she’s not actually physically capable of doing that, is she,” Coach Horton agreed. Coach Horton planned to talk with Gray about the incident and give her a warning. Coach Horton testified that she would not have been required to write Gray up, give Gray detention, or send her to the principal’s office “because it wasn’t that major.”

So that was it right?  Wrong. Enter the school resource officer: Tuscaloosa County Sheriff’s Deputy Antonio Bostic. He decided to teach the nine (9) year old girl some respect:

Deputy Bostic told Gray to turn around, pulled her hands behind her back and put Gray in handcuffs. Deputy Bostic tightened the handcuffs to the point that they caused Gray pain. Deputy Bostic told Gray, “[T]his is how it feels when you break the law,” and “[T]his is how it feels to be in jail.” Gray began to cry. Gray stood with the handcuffs on for not less than five minutes, with Deputy Bostic standing behind her.

In discovery responses, Deputy Bostic averred that he detained and handcuffed Gray “to impress upon her the serious nature of committing crimes that can lead to arrest, detention or incarceration” and “to help persuade her to rid herself of her disrespectful attitude.” Deputy Bostic’s discovery responses also stated that he “did not feel the need to apologize to LaQuarius Gray for telling her that she committed a misdemeanor in my presence and showing her what would happen if a less generous officer than I were to arrest her for her actions.”

I am frigtened for all residents of Tuscaloosa County if Deputy Bostic is considered lenient. A nine year old girl – 9!! – smarts off to her teacher before she obeys his command. The remark is so innocuous that the teacher disregards it. Yet this guy slaps the cuffs on her and accuses her of criminal activity. Never mind his disregard of the Fourth Amendment, his actions show an extreme lack of good sense.

Thankfully, he is going to face a lawsuit for his irresponsible actions. The use of the cuffs violated the Fourth Amendment:

We likewise conclude that Deputy Bostic’s conduct in handcuffing Gray, a compliant, nine-year-old girl for the sole purpose of punishing her was an obvious violation of Gray’s Fourth Amendment rights. After making the comment, Gray had complied with her teachers’ and Deputy Bostic’s instructions. Indeed, one of the teachers had informed Deputy Bostic that she would handle the matter. In addition, Deputy Bostic’s purpose in handcuffing Gray was not to pursue an investigation to confirm or dispel his suspicions that Gray had committed a misdemeanor. Rather, Deputy Bostic’s purpose in handcuffing Gray was simply to punish her and teach her a lesson. Every reasonable officer would have known that handcuffing a compliant nine-year-old child for purely punitive purposes is unreasonable.

Here’s hoping that not only the reasonable officers, but officers like Deputy Bostic learn that lesson.

SWAT Team Cleared For Botched Raid

August 3, 2006

A few weeks ago I posted about a botched SWAT raid in Limestone County, in which the para-military troops:

1) failed to even give the local authorities a courtesy call; 

2) busted down the door and exploded into the wrong house;

3) shot the unsuspecting resident of that house, Kenneth Jamar, who is in his 50’s and suffers from gout, and whom relatives say “can’t even get up to make himself a ham sandwich;”  

4) did not find the actual suspect until long after the mistaken entry and shooting, when they happened to see him in the front yard of the house talking to reporters.

I concluded the post with this observation:

Three, no-one is going to suffer any adverse consequences for this screw-up. Any lawsuit will quickly be dismissed, with words like “emergency” and “officer’s safety.” Never mind the fact that the officers created the emergency and the dangers. As for internal discipline, I’m not holding my breath.

Guess what? A “review board” has found that the troopers acted “in policy” when they shot Mr. Jamar. According to the story, the officers intended to search Mr. Jamar’s house, though the warrant actually identified another house. They also allegedly “announced their presence and identified themselves” before smashing down Mr. Jamar’s door. After getting into his house, they had to break down another door, behind which they found Mr. Jamar holding a gun. Only after telling him to drop the weapon did the cops open fire on Mr. Jamar.

The story does not say who sits on the review board. Without knowing that, the findings are untrustworthy. I would certainly reject these conclusions if they came from other law enforcement officers. I would probably accept them if there were private citizens on the board. For purposes of this post I’ll take them as true. But the whole thing still stinks.

Why was the SWAT team needed in the first place? The aftermath sure indicates that the actual suspect was anything but a danger. Why couldn’t they have just set up surveillance and then arrested the guy when they saw him? What was so important that it required the use of a small army?

And how about this attitude:

Sheriff Mike Blakely said it is unlikely Jamar will face any charges stemming from the incident.

“Unless the DA’s office sees some reason to bring charges, I don’t see any reason to. … Getting shot was heck of a lot more punishment than the statute calls for. In the interest of justice, I see no reason to charge him,” he said.

The officials will make all the excuses in the world for the SWAT team, but “punishment” is what you get if you dare to defend your home. All Mr. Jamar knew was that a bunch of guys in dark outfits with big guns just smashed through his door. What was he supposed to do? Sure, the “review board” found that the cops announced their presence. But how long did they wait, if they did, between the announcement and deployment of the battering ram? And with two closed doors between him and the troopers, do you really think Mr. Jamar heard them?

I’m not saying these type of raids are never justified. I am saying all too often they are the default method of arresting people. As this case illustrates, they are dangerous for everyone involved. The more of them, the more likely this stuff is going to happen. So using them ought to be a last resort.

(Update: Radley Balko has some great suggestions for reducing the number of botched raids.)


July 26, 2006

Over two centuries ago, Sam Adams had this to say:

A standing Army, however necessary it may be at some times, is always dangerous to the Liberties of the People. Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens. They have their Arms always in their hands. Their Rules and their Discipline is severe. They soon become attachd to their officers and disposd to yeild implicit Obedience to their Commands. Such a Power should be watchd with a jealouse Eye.

I have a good Opinion of the principal officers of our Army. I esteem them as Patriots as well as Soldiers. But if this War continues, as it may for years yet to come, we know not who may succeed them. Men who have been long governd by military Laws, and inurd to military Customs and Habits, may lose the Spirit and Feeling of Citizens. And even Citizens, having been used to admire the Heroism which the Commanders of their own Armies have displayd, and to look up to them as their Saviours, may be prevaild upon to surrender to them those Rights, for the Protection of which against an Invader, they had employd & paid them.

For those reasons, this makes me nervous (H/T Radley Balko):

As the fighting continues overseas, some lessons from the Middle East conflict are hitting home right here in Alabama.  Members of the Montgomery Police Department SWAT team are in a five day counterterrorism school taught by a former Israeli servicemember. . . .

Montgomery officers say, if they can absorb the tactics of one of the world’s premier counterterrorism teams, they’ll learn to move faster and become smaller targets.  It’s an international lesson racing to the heart of Alabama crime fighters.  The Montgomery police say counterterrorism training has become essential for all law enforcement in the wake of 9-11. They say this school fills a real need in their department and the new techniques will be applied to everything they do.

For plenty of examples of SWAT teams destroying those rights ‘for the Protection of which against an Invader, [we] had employd & paid them’ check out this map of “isolated” incidents, as well as this report on the often tragic results of using para-military units to enforce the criminal law.