It started with Arielle Lipsen walking into a DEA raid at her family’s smoke shop, Purple Zone, in Alpine, Texas. It ended, to the extent it’s anywhere near an end, with Arielle’s letter of apology, a image of which appears on the Brewster County Sheriff’s facebook page. In between, a friend of Arielle’s, Tom Cochran, posted a picture and explanation of what happened to her.
“She was having a conversation with a female agent, and trying to give the agents the lock code,” Ilana Lipsen claimed. “She was trying to tell them there was no key, but a code. There were too many officers and about half of them were doing nothing, then this one agent charged at her, threw her, kicked her legs out from under her, and when she was falling, her leg brushed up against his leg. That’s when he said ‘you’re trying to beat a federal agent’ and shoved the butt of his rifle into her neck.” (via BigBendNow)
But after the agent alleged that the blood on the floor wasn’t hers, but his, because of her brutal attack in the midst of roomful of armed DEA agents, the Magistrate Judge B. Dwight Goains had all he could take. Bond was granted after the detention hearing, but with a condition.
The defendant shall: Will request Tom Cochran retract his blog on Facebook. Will provide a letter of apology to both local newspapers in Alpine, TX, advising DEA had a legitimate reason to execute a warrant at her business. Will advise news paper a warrant was not executed at her business because she was Jewish, owned Arabian horses, is of Turkish decent or because she visited Chinese websites. Will advise media (KWest 9 news) that her sister, Arielle Lipsen, was not beaten by agents carrying/using a M16 rifle, and her sister instigated/assaulted agents.
And thence comes the apology letter, which certainly reads as if it’s sincere.
As Eugene Volokh at the WaPo Conspiracy notes, these conditions of release are constitutionally dubious.
[I]t’s an order compelling speech, on threat of imprisonment, which would itself normally be a First Amendment violation; but on top of that, it was issued without a trial, and thus without any final factual findings supporting its validity.
Here, the conditions seem to be tied simply to correcting what the magistrate judge thinks are factual errors. But a court can’t just compel someone who hasn’t been convicted of any crime to recant her accusations against government officials. If the statements are found to be false at a trial, that might lead to damages liability or criminal punishment — or potentially even an injunction. If Ms. Lipsen is found to be guilty of some other crime, it’s possible that some speech restrictions could be imposed on her as a condition of any probation or parole (though I’m not sure that these restrictions properly can be). But absent any such trial and verdict, the bail condition seems to be a clear violation of the First Amendment.
But as much as the First Amendment concerns are important, they’re frankly secondary to a more basic concern: Magistrate Judge Goains has no authority to impose such conditions, regardless of whether they impair free speech. Yet, he did.
The basis for a bond (the fed equivalent of bail) isn’t a mystery. It’s set forth in 18 U.S.C, §3142, which authorizes the judge to pick from a menu of conditions or:
(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.
There are two explicit bases for bond, and any additional conditions, the return of the defendant to court and the safety of others. Perhaps this mag thought that safety referred to potential butthurt by the agents for allegations that they were needlessly vicious? Let’s get real. This is what is referred to as ultra vires, beyond the power of the court.
When an innocent person (recalling that there is a presumption of innocence) is being held in custody and relies on the determination of the judge for her release pending trial, the power in the hands of that judge is not merely vast, but overwhelming. With a flick of his wrist, an utterance of a number beyond her ability to pay or the rejection of a person as financially responsible, pre-trial detention feels very much like a sentence. The walls, cells and guards in the correctional center emit the same odor as the ones in prison.
At that moment, a person in custody is inclined to be very acquiescent in doing whatever it takes to curry favor with the magistrate, as are those who care about her and want to see her free. The smallest slight, sense that a person in custody may present a problem that will offend the mag’s sensibilities could be enough to spell the difference between a year or two in jail pending a trial and freedom. Nobody gives the defendant that year or two back if she wins. It violates the First Rule of Thermodynamics, prison version. Once spent, it’s gone forever. It is not like the First Rule of Fight Club at all.
Arielle is now out on bond, and no doubt greatly prefers to be out on bond than not. There are any number of conditions that could have been imposed for her release. Wash the DEA agent’s car. Mow his lawn. Disavow what happened with sufficient sincerity to undermine any chance of her using it at trial. Maybe even confess to a crime.
But regardless of what really happened, what is the truth and what’s fulfillment of a condition so that she’s not returned to custody for rank disobedience, this bond condition raises a problem that will not go away. Magistrate Judge B. Dwight Goains, who is employed by the District, is not life-tenured or confirmed by the Senate, but serves an eight-year term which should be up next year. The Federal Magistrates Act of 1968, 28 U.S.C. §631(I) provides for the removal of a mag who sucks.
The condition noted upon Arielle Lipsen’s bond release order goes beyond any authority possessed by Goains. He doesn’t get to do whatever he pleases, even though he’s not subject to the same limits as God. That he imposed such a condition for the release of a defendant demonstrates two important things. First, he cannot be trusted in the office. Second, he is a cancer that must be excised. No one can sit in a position of power and abuse his authority this way. And if the judges of the Western District of Texas let this bond condition fester or permit Goains to come to work in the morning, then it’s disgraced Article III of the Constitution.
As much as I respect the First Amendment, flagrantly disgracing Article III is worse. It cannot stand. It makes me want to puke.