Nature abhors a vacuum, and Eliot Spitzer didn’t have much to do after his foray into TV punditry crashed and burned, a few times. It was a match made in…New York.  The disgraced former governor, marauding attorney general, overly ambitious assistant district attorney, horn-dog hypocrite and liar, now wants to do the books for New York City.

Well, not really do the books, as he wants to use the oversight authority of the Comptroller’s office to once again become the sheriff of something. Continue reading →

While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don’t always bear out this sensibility. It’s done it again by publishing  Lawrence Downes’ homage to ignorance in its editorial notebook.

Payback is a bitch, and to the extent Downes’ screed offers anything, it’s the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR’s advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it’s well deserved.

This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.

For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.

Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.

Hundreds?  Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing “daily golf” using the New York Times version of math?

The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.

Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It’s just money.

So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board’s disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.

Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI’s as well.  Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don’t conform to the narrative of payback.

It’s not that this doesn’t give rise to issues. A railroad disability isn’t like a disability that applies to desk jockeys. It’s an occupation disability, where it’s given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.

Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people?  The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits. 

Even putting aside these and myriad other “details” wholly ignored by the media, there remains a flagrant flaw:

The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.

Meet the new criteria for terminating rights by the federal government, dubiousness. Forget “beyond a reasonable doubt,” “preponderance of the evidence” or “probable cause.” Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of “dubiousness” for deprivation?

It’s not about proof of wrongdoing. There is no proof of wrongdoing. The only “proof” is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let’s not muddle up anger with facts).  As long as people are angry, we don’t need no stinkin’ evidence.

Lest someone get the misimpression that it’s just the Times feeding into the anger and ignorance that pervades the media attention,  Newsday offered an editorial as well:

Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits — a hassle, probably, but a crucial step to whittle out those who committed fraud.

Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process?  The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government’s job easier.

As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn’t obscure the facts, my rage doesn’t make me desire payback from innocent targets.

For those of you who rail about constitutional violations when it comes to the police, what’s being done here isn’t materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness. 

But then, you aren’t getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it’s just too hard to muster any sympathy.  Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let’s just burn them all at the stake and call it a day.

Knowing my love of police “magic words,” a reader pointed me to a thread on the subreddit  Bad Cop No Donut on whether there is anything to be done when a police officer claims he “smells pot” in a car.

Or does the 4th Amendment REALLY vanish with those magic words?

I’ve been stopped and the cop claimed he smelled pot, when, at the time, I hadn’t touched the stuff in years. I told him I’d consent to a search if he apologized for wasting both of our time when he didn’t find anything. He searched, didn’t find anything, and I was on my way without an apology and a “verbal warning” to fix my tail light

Do you ask for another officer’s opinion?

Do you tell the officer “bullshit”?

I’m just trying to help some people know what to do in this situation.

Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he “smells pot,” he is invoking the  automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.

Since smell can’t be captured and bottled for later presentation to a judge, the only “proof” of what an officer smelled is the officer’s testimony. If he says so, it becomes real, and that’s why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn’t mean he didn’t smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn’t require the cop to be right.

But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear.  The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it’s over, leaving it there.

So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o’ the hat. This is where people don’t seem to understand how constitutional rights work.

There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing.  Bear in mind that the cop may have claimed to smell marijuana, but that doesn’t mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.

But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go.  What then?

This is where people get confused. That’s it? Don’t the cops have to, you know, do something?

No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There’s nothing. As the cop drives away, that’s the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.

The problem there, of course, is that the cop, invoking the magic words that he “smelled pot,” will very likely prevail despite the fact that he found nothing. You won’t make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.

Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They’ve performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.

The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided.  And here’s an even worse secret: they don’t even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.

They get this. Most people don’t. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.

There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one’s invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.

But these rights we love so dearly don’t happen on their own. Someone has to make them happen. We make them happen.  And if we don’t, then we’re left on the side of the road with our Maserati in pieces cursing.  The cops have magic words, but constitutional rights aren’t magic. They only happen if we make them.

Whether it’s proof of entropy (which isn’t what it used to be) or a variation of Godwin’s Law, SJ has been inundated of late with comments by non-lawyers urging that people “kill the armed thugs,” or some similar sentiment suggesting that harm be done to police officers.  You, dear readers, wouldn’t know this because I delete the comments and, most of the time, ban the commenter. But I see it, and the problem has grown bad enough, large enough, disturbing enough, that I feel compelled to write about it.

No.

First, the idea of promoting rank hatred and harm is anathema to what I hope to accomplish. If there is a goal here, it is to illuminate.  Sure, there are many posts here that address police abuse and misconduct, but the purpose is to let people know that it’s happening in order to illuminate the problem and, hopefully, change attitudes so that such conduct will not be tolerated.

But harm cops?  Harm anyone? Never. The solution is no more doing harm than the answer to murder is to execute people. 

Cops are people. Some cops do some pretty awful things, and like any other person, should be held to suffer the consequences of their wrongs.  But not all cops are evil, and not even the cop who does something wrong, even something terribly wrong, is necessarily a monster. He could well be the same cop who saves a life one day, then violates someone’s constitutional rights the day after.

People aren’t one dimensional, all good or all evil. That’s true of defendants. It’s also true of cops. It’s true of everyone, and the inability to realize the absurdity of characterizing a human being as a unidimensional entity, with people who love him, with better and worse days, with a bad attitude and good intentions, is inexcusable.  It’s wrong when a cop does it. It’s wrong when a prosecutor does it. It’s wrong when you do it too.

Your simplistic outburst, your anger and frustration, may be understandable, but it will not be tolerated here. No comment urging harm to anyone, cop or otherwise, will see the light of day at SJ.

Bear in mind, this is my soapbox, not yours. You think you’re right? You think you’re a bold visionary, with the solution to society’s problems?  That’s fabulous. Start a blog of your own and write anything you please.  I’m a huge free speech advocate, and fully support your right to express whatever stupidity strikes your fancy.  But you have no free speech rights here. This is my home, and I will not allow insanity to be spewed.

The internet is a huge place, perhaps without limits provided government and lawprofs don’t fix the place to make sure everybody is happy.  No doubt you will find others who share your views and will cheer you on. There is a dark corner for almost everyone, and if you can’t find anyone who believes as you do on the internet, then you win the prize for being the singular freakiest human being ever.

But that doesn’t make your anger and hatred right. It makes you nuts, and the hallelujah chorus you hear behind you just as nuts, if only a bit dumber.  The only thing violence begets is more violence, despite whatever bone in your head fails to connect to reality.  Calling for harm to be done to anyone, especially cops, is dangerous, counter-productive and, most importantly, the wrong answer. 

We need police.  There are some bad dudes out there who will harm you and harm your children. Regardless of how you feel about the bad dudes, you really don’t want them doing you or your kids harm.  And though you might question the efficacy of the police with some excellent justification, they still do the things that either protect us from the bad dudes or keep the bad dudes in check.  Not always. Not always well. But they’re all we have, and we would be worse off without them much of the time.

And then, every once in a while, a cop does something truly heroic and selfless for another person.  Never forget that this happens.

So the bottom line is that while I am happy to have anyone interested in anything that appears at SJ read and, perhaps, think more deeply about the issues raised here, this isn’t a blog dedicated to hatred, violence and harm. There are many other places where your views will be embraced, but not here.

Stop it. Don’t do it. I will not tolerate it. There will be no mention, ever, of harming anyone allowed in the comments at SJ.  And if you were half as smart and sane as you think you are, you would never want to write such a thing in the first place. 

Update:  A post at  WindyPundit provides an excellent complement to the point that the bad cop can do good and the good cop can do bad. As Mark says, “[t]here’s no contradiction here.”

One of the great things about knowledge is that it’s an inexhaustible commodity. No matter how many people get it, there is still plenty to go around. Whether that’s what they’re selling in public schools can be reasonably debated, the Montgomery County School Board and District Attorney have put a price on it and are prosecuting Hamlet and Olesia Garcia for stealing $11,000 worth of the stuff for their fire-year-old daughter.

Via Philly’s 6ABC :

Hamlet and Olesia Garcia are charged with theft of services.

Montgomery County authorities say the couple sent their 5-year-old daughter to Pine Road Elementary. The problem is they allegedly lived in Philadelphia which is about a mile away from the school.

They came on it legitimately, however, as Olesia and her daughter, during a rough period in her marriage to Hamlet, moved in with her father who lived in Lower Moreland. When it came time for her daughter to go to school, she put her in the Pine Road Elementary School down the road. Nothing wrong with this,

By March 2012, the marriage was back on track. Olesia reconciled with her husband Hamlet, and she moved back in with him, which means back out of Montgomery County, but kept their daughter in Pine Road Elementary to finish off the rest of the school year.  Not long after, they were called in to discuss residency issues.

Should they have notified the district of the change at the time? Probably. Is it the sort of omission that most people would make. Probably. Is there anything surprising or unreasonable about wanting to keep their daughter in the same school to finish out the school year? Hardly.  But then, there is the matter of money.

“They didn’t live there. They didn’t pay taxes there, and basically stole from the taxpayers in Lower Moreland,” said Montgomery County Assistant District Attorney Kevin Steele.

The Montgomery County District Attorney’s office says the cost to taxpayers for the Garcias to send their child to Pine Road Elementary was nearly $11,000.

“If people are living someplace else and not paying their taxes, they shouldn’t send their kids somewhere where they are basically stealing from,” said Steele.

Apparently, Steele didn’t attend a school with knowledge to spare. By no stretch of economics did it “cost taxpayers” $11,000 for the Garcias to send their child to Pine Road Elementary. While running a public school is a hugely expensive proposition (thanks, unions!), the concept of fixed and variable costs comes into play. The only marginal costs related to an individual student is the extra book or two that might be used to educate them, and even that’s fairly speculative as most schools keep a bunch of extra books lying around.

Rather, the per capita cost for a student is merely a math calculation, the division of the school’s, or perhaps even the district’s, operating costs by the numbers of students attending, thereby attributing a tiny piece of the overall cost to each student. It’s a phony number, since it costs no more nor less to have a few students more or less.

But in this case, they can’t even use the phony number to make their claim, as the Garcia’s daughter was legitimate in Pine Road School until March, and was only arguably out of district for the last couple  of months. If there was any marginal cost for educating her, it was already properly used from September to March. The last couple of months were a free ride for everybody. Nobody stole a dime from the taxpayers, and the taxpayers lost nothing.

Granted, the taxpayers didn’t get an extra pile of loot to offset their otherwise legitimate costs, but the Garcias were ready to make it right and mail the check when things got ugly.

“We told the school if it was a mistake that we didn’t tell you in March, we didn’t move out. We would pay you from March until the end of June. They didn’t want the money,” Garcia said.

No way, the school district responded, despite the fact that there were other cases each year of children coming from out of district, yet all the others were “resolved” without a phone call to the police. But not this time, not when it came to the Garcias.

One thing both sides agree on: this family has been singled out.  Marykay Feeley, Superintendent of Lower Moreland schools, told the Northeast Times newspaper,  “On a yearly basis, there might be ten cases or more, and this case has been the first time we actually turned it over to the township police department to try to get it resolved.”

So why the Garcia’s?  Why this family, if there are at least ten other families suspected of stealing government education.  Hamlet says the school district is seeking more than justice. They want to use his family as an example.

Let one Garcia in and next thing you know, they’re everywhere?  The Garcias are being prosecuted for the theft of $11,000 by fraud, with a max sentence of seven years while anyone else would have simply been forced to pay their share in accordance with district policy and sent on their way.

If you don’t think the prosecution is taking the case seriously (“they will never get away with this heinous crime...”), the Garcias held a news conference to publicize what’s happening to them, and the district attorney sent in spies, who concealed their identities and claimed to be journalists for the local Fox affiliate, to record the conference. It’s unknown whether they’ve tapped their phones or deployed the drones as yet.

The only peculiar note in all this is that the Garcias have made a notably  peculiar choice of lawyer for their defense:

They recently hired Ricardo Corona, a high profile attorney from Miami, to represent them in the case.

Regardless of his “profile,” it’s incomprehensible for someone to go to Miami to find counsel, and similarly bizarre for a lawyer from Miami to not advise the people to find a lawyer locally. While non-lawyers have these grandiose visions of dream teams and far-away lawyers who they perceive as “important” impressing the crap out of the local prosecutors, it tends to be utter nonsense and counterproductive. There is no shortage of excellent legal talent in Philly, and they have the virtue of knowing the law and procedure. In other words, local is often less expensive, more competent and more effective.  Corona appears to have local counsel, but the duplicative service only serves to emphasize the issue.

When someone makes a choice like this, it smacks of lacking sound judgment and perhaps a firm grasp of reality.  And when a lawyer from Miami is happy to take the retainer, it smacks of, well, lawyers, giving rise to an unpleasant odor for a family that has enough ridiculous problems on its plate.

* Apologies to William Shakespeare. Hamlet, Act 5, Scene 1.

“Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is! my gorge rims at it. Here hung those lips that I have kissed I know not how oft. Where be your gibes now? your gambols? your songs? your flashes of merriment, that were wont to set the table on a roar? Not one now, to mock your own grinning? quite chap-fallen?”

Yes? No? Why do I bother?

The question below was left in a comment to a recent post called The Easiest Practice of Law. It was the latest in a series of posts here directed toward the Slackoisie, who I try my darndest to help despite their lack of appreciation for my efforts. Still, I press forward, lest they spend their days at JD Undergound making each other stupider.

My Easiest Practice post offered what I saw as a pretty clear message:

The other question is whether there is any area of law, any niche at all, that this person gives a damn about.  Does it interest him? Does he feel he might make a difference and help people? Is there any tug, even the slightest, that draws him toward an area of law?

I am a new but gainfully employed attorney; I have about 1 year of experience in a litigation practice that deals with construction law, real estate law, transactional, etc. What I am interested to learn from any more experienced practicioners [sic] out there is this; is there an area of the law that one might focus on exclusively and can be well understood within a reasonable period of time so that one could branch out on their own in a competent fashion? To be more clear, on any given day I may deal with a real estate issue, an issue in a construction contract and review a licensing agreement. I find that I am learning a bit of this and a bit of that but the lack of focus is depriving me of the chance to become familiar with any one area of law which is what I want most of all. Due to my personality traits, I prefer to focus on one area of law and become as much of an expert in that area as I can. So, any suggestions?

And don’t waste time saying something like “all areas of law are complex and ever evolving” or “any area of law can become familiar with enough time.” That is not helpful. I want to know about an area of law that is relatively simple to learn. Contrast no-fault law with class action toxic tort cases. see?

What do you know about highway checkpoints, other than preferring that you not end up in one?  Not much, and the police are counting on you not learning enough to beat them at their own game.  Checkpoint basics are fairly straightforward, sobriety checkpoints being lawful as long as they are conducted in a pre-determined random fashion, whether it’s every car or every sixth car.

Drug checkpoints, on the other hand, are unconstitutional. That means they can’t lawfully do them, though it doesn’t mean they can’t walk a dog around your car at a sobriety check point for kicks. But there is another trick with drug checkpoints that’s more interesting. Put a big sign on the highway that there’s a drug checkpoint ahead and see who avoids it. Cool trick, right?

From the Washington Post :

Police in the Cleveland suburb of Mayfield Heights know they’re not allowed to use checkpoints to search drivers and their cars for drugs.

So they’re trying the next best thing: fake drug checkpoints.

Police in the city of 19,000 recently posted large yellow signs along Interstate 271 that warned drivers that there was a drug checkpoint ahead, to be prepared to stop and that there was a drug-sniffing police dog in use.

There was no checkpoint ahead. That would be wrong. But is there anything wrong with fooling the unwary into taking evasive action and thereby creating a reasonable suspicion?  Some people pull to the side of the road, which would allow them to dispose of contraband. Sometimes there’s an exit before the checkpoint and they head off the highway. Some make a U-turn. To a hammer, these all look like nails.

Dominic Vitantonio, a Mayfield Heights assistant prosecutor, said the fake checkpoints are legal and a legitimate effort in the war on drugs.

“We should be applauded for doing this,” Dominic Vitantonio said. “It’s a good thing.”

And yet, he won’t be winning the ACLU’s Man of the Year award. Again. But it’s hardly a foregone conclusion that such conduct is “legal and legitimate.”  If cop was to threaten to beat a person senseless with his baton for fun, a sufficiently clear unlawful act (yes, Vitantonio?), in order to induce the person to either consent to a search, assault the cop in defense or flee, either way using his reaction as the basis to take further action against the person, would that fly?

Bill Peters, one of the four drivers pulled over as a result of the fake checkpoint, said he wonders if he was targeted because he has long, unkempt hair.

Four drivers? With results like that, who can blame the Mayfield police for being so aggressive. Society will be forever in their debt, as will hair stylists.

Peters, of Medina, said he was driving on the interstate when he missed his exit. He pulled over to check his phone for directions, then pulled back onto the freeway when his phone disconnected from the charger, causing him to pull over again to reconnect it, he said.

Soon after returning to the freeway, police pulled him over.

No drugs were found (of course), but this goes not so much to the legality of the tactic, but the fact that the actions of drivers may have nothing whatsoever to do with the phony checkpoint. Hammer, nail, directions. Or maybe they had always planned to get off at the next exit. Or maybe they forgot something and had to turn around. Or maybe they have to go to the bathroom and remember that fast food joint they just past. There are a ton of reasons why people do what they do having absolutely nothing to do with whatever the Hammers have in their heads.

The point being that the characterization of drivers’ conduct in relation to a phony checkpoint sign lacks any substantive basis in fact to give rise to a suspicion of anything.  But this, of course, doesn’t mean that it won’t suffice to persuade a court that it gave rise to reasonable suspicion. There’s the rub.

All it takes is for the cop to have a reasonable and articulable basis. It’s an extremely low threshold, and need not exclude the thousand others bases for people doing whatever the feel like doing, including deciding they just don’t feel like being party to a police checkpoint.

Can the cops create the scenario that gives rise to the actions or reactions that create the appearance of reasonable suspicion where none otherwise exists?  Given the Supreme Court’s approval of pretextual stops in Whren, it would appear they can. The standard is purely objective, whether the conduct can be justified without regard to any subjective belief or purposes on the part of the cops. 

The bottom line is that the police use lies in order to get people to give them what they’re looking for all the time, and the courts are more than willing to embrace this as a necessary weapon in the war on whatever war they are fighting today. 

Lawprof  Jonathan Turley appears to suggest that this is abusive and unlawful:

I would challenge any such stop. There are ample reasons for citizens to want to avoid police abuse, which is what the signs are promising since police cannot engage in such action.

The fact that the prosecutor, Mr. Vitantonio, supports such abusive practices shows a serious gap of judgment in this jurisdiction. He appears to believe that citizens should be stopped if they take any effort to avoid an act of police abuse. I hope that one of these four citizens will challenge their arrests and put Mr. Vitantonio’s theory to the test.

It strikes me that Turley is half right. While I agree that pulling such stunts on people driving down the highway is abusive and deliberately intended to undermine their constitutional rights, I fear that there is nothing unconstitutional about it. That doesn’t make it right, any more than the horrific Whren decision, which reflects constitutional doctrine that rewards police for being liars. But blaming Vitantonio for being a tool doesn’t change the fact that the courts similarly allow such abuse to happen under the guise of small inconveniences for the greater good of the War on whatever.

The best thing to remember is that drug checkpoints, at least, are unconstitutional, so should you see a sign alerting that a checkpoint is up ahead, drive on, dude. Drive on.

It’s not yet known whether there was a smoking gun in the jury room, but whatever is known, it’s not by the United States Attorney’s office in the District of Vermont.  And it’s just killing them. Bummer.

From  The Barre Montpelier Times Argus (that’s a name, right?):

Prosecutors are asking a federal judge to order the turnover of defense interviews with jurors who sat on the death penalty case against convicted murderer Donald Fell.

Judge William Sessions, who presided over the 2006 trial in the killing of Terry King of North Clarendon, decided in May to further consider a wide range of complaints contained in Fell’s latest appeal.

In a seven-page filing, prosecutors say defense attorneys have ignored their requests to turn over the interviews in advance of an August hearing on the appeals.

In the prosecutors’ motion, Assistant U.S. Attorney William Darrow wrote that the government was not made aware of the defense motion nor was it given the opportunity to respond to the request.

Prosecutors didn’t know about the interviews until months after they were completed, he wrote, because the judge ordered that both the motion and his decision be sealed.

“At this juncture, the government is completely in the dark about the facts and circumstances that led (defense lawyers) to request authorization to interview the jurors in this case and to the court’s subsequent order granting authorization (to the defense) to do so,” the motion said. “The government has no information with which to gauge the extent of the court’s authorization to (the defense.)”

U.S. Attorney Tristram Coffin said Tuesday it’s not uncommon for motions and decisions to be kept secret from either the prosecution or defense through the sealing of records.

But with the hearing in August closing in, Darrow wrote that his ability to prepare an argument about the alleged juror misconduct has been hamstrung after repeated requests to Fell’s New York attorneys have gone unanswered.

“The government simply cannot do its job blind,” he wrote.

Fascination spread across the blawgosphere as something that almost never happens happened in Henderson, Nevada.  Marc Randazza first pointed to the story from Courthouse News :

The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States….

The complaint continues: “Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.’”

“As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor….

“Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain….”

Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.

There are far more details (see the full Complaint, courtesy of Doug Mataconis), but the bottom line is the police wanted to use Mitchell’s home for their own purpose and arrested Mitchell for refusing to cooperate and took it over for their lookout of the neighbor’s house. Upon news spreading, law nerds began to salivate. Third Amendment! Do you know how rare this is?   They don’t call it “the forgotten Amendment” for nothing.

But as Ilya Somin points out at Volokh Conspiracy, it’s neither entirely clear that it actually is a Third Amendment case, nor that fighting the case on Third Amendment grounds is going to win the day.  First, cops aren’t soldiers, even if they like to dress up like them and play with soldier toys. On the other hand, there was no thing called “cops” back when the Third Amendment was enacted.

Second, since there haven’t been many Third Amendment claims made, the Supreme Court has never incorporated the Third under the Fourteenth Amendment to make it apply to the states. That doesn’t mean it won’t or shouldn’t, but just that it hasn’t yet happened.

Third, while the cops clearly seized Mitchell’s home for their own use, and arrested him because he didn’t love them enough to do as he was told, whether this is what is meant by “quartering,” or whether the transitory use of a house is sufficient to invoke the Third Amendment.  Quartering refers to the housing, such as barracks, where the soldiers would live. The cops weren’t looking to move into Mitchell’s house, but use it in the course of investigating a possible crime by a neighbor. Similar, perhaps, but not quite quartering.

Cool as it may be for lawyers and scholars to have a zebra in their midst, the likelihood of this case producing some serious Third Amendment law isn’t particularly strong.  The conduct of the police was clearly outrageous and flagrantly unconstitutional, but the Fourth Amendment is more than up to the task of sound basis for relief.

They entered, they seized, they assaulted, they searched, and they seized again, the home of Anthony Mitchell. This is a claim for damages for the violation of his constitutional rights, and the outcome of such suits is monetary relief. Assuming its all true, then the pressing question is less which amendment it falls under as whether it violates Mitchell’s rights under any amendment. And indeed, it does.

As for the ever-fascinating why question, why would they do this to a man who did nothing wrong other than not doing what the cops wanted him to do, Gamso offers a simple explanation:

Henderson is a suburb of Las Vegas.  The cops gambled.  They bet that they could do whatever they wanted and get away with it because, well, they were the cops.

In the spirit of Vegas, I’ll gamble and say that they won’t get away with it, but that the basis for their conduct being held to violate the Constitution won’t be the Third Amendment, with all its unanswered and difficult questions, but the Fourth. As cool as it may be to ponder the possibilities of new vitality given the forgotten amendment, I’m going with the odds as the house never loses.

Houston criminal defense lawyer Rob Fickman, whose Stetson just happens to fit me perfectly*, came up with an idea a few years ago. He thought that July 4th, Independence Day, would make a damn fine day for the reading of the  Declaration of Independence, adopted by the Continental Congress.

And so the  Texas Criminal Defense Lawyer Association began a program of reading the Declaration on the Fourth of July.  Yes, they actually do it on July 3rd at courthouses across Texas, but that’s only because everybody is home swilling beer and munching barbecue on the 4th, and there would be no one there to hear it.  But let’s not blow the concept over such minor details.

The readings have since spread across the country, with criminal defense lawyers reading the Declaration of Independence on the steps of more than 50 courthouses. 

Have kids? Have friends? Today would make a fine day to read the Declaration of Independence to them.

Have no friends or family? Then you have all the time in the world to read it to yourself.

Don’t have a copy handy?  The internet is here for you. Here’s the text of the  Declaration of Independence from the national archives.

And while the ribs are on the grill, and you have some extra time on your hands, you might want to consider reading the  United States Constitution as well. It couldn’t hurt.

Don’t worry if your beer gets warm. That’s how the Brits prefer it anyway, and without the Declaration of Independence, you would be working for them today, maybe for the East India Company doing doc review. Now do you appreciate the significance of the Declaration of Independence?  I thought so.
 


And if it wasn’t for our separation from England, we would never have been able to create a government that would give us this:



Now, get back to that beer. It’s not getting any colder, you know.

* This point was made abundantly clear to Fickman in a honkytonk bar, and yet Fickman failed to get the hint, proving that Texans are either selfish or hate Yankees.