I just read that the parents of an autistic high school student arrested in a drug sting operation in Temecula, California last December have filed suit against the school district. The parents were “initially happy their son had made his first and only friend last year at school,” but became suspicious when his “school friend” kept making excuses for not coming over. The “friend,” actually Riverside County Sheriff’s Deputy Daniel Zipperstein, “pressured their lonely and vulnerable son with more than 60 text messages over about three weeks into buying half a joint from a homeless man.”
The very existence of “sting operations,” by which law enforcement personnel solicit illegal activity — in other words, perform acts which are illegal on their faces in the course of their official duties — speaks volumes about the nature of the state and its laws. When the first professional police forces were created in London and New York in the early 19th century, they were regarded as simply hired functionaries who got paid to perform the same “posse comitatus” functions (preserved in the archaic practice of “citizen’s arrest”) within the competency of all citizens. The proposition that professional police be granted special status over and above that of their fellow citizens would never have been tolerated.
I’ve never understood the logic by which someone in uniform can commit an act that’s defined as illegal by statute, in the course of a sting operation, without themselves breaking the law. If it’s illegal for a citizen to offer drugs or sexual acts for sale, or to solicit their sale from others, how is it legal for a cop to offer to buy or sell drugs from a citizen?
The answer, of course, is that the state cannot operate on the same logic as its citizens. I once told a coworker that, when it came to drug and sex work sting operations, cops should be subject to the same anti-solicitation laws they’re enforcing on us. Her response: “But then how would they catch people who do that stuff?”
Good question. Obviously, they couldn’t. The state simply can’t function unless it gives its own functionaries, with a wink and a nudge, an exemption from the laws that everyone else is supposed to obey.
The state couldn’t enforce laws against drugs, sex work, or any other consensual activity if it were literally bound by laws like the due process guarantees in the Bill of Rights. Imagine how the Drug War would fare if the Fourth Amendment were enforced literally, without any of the “reasonable expectation of privacy” or “probable cause” or “good faith” lacunae the courts have read into it — if cops actually had to have a warrant specifying the place and what they were looking for before they could set foot on your property? Imagine if civil forfeiture were treated as a violation of the Fifth Amendment, and the state couldn’t take your possessions without first charging you with a crime and persuading a jury to convict you. Under those terms, it wouldn’t matter if the substantive restrictions on drugs were as harsh as those in Singapore — they would be dead letters in practice because they were unenforceable.
Civil forfeiture was first introduced in the revenue collecting arms of government, because it was understood from the beginning that a literal interpretation of the common law prohibition on seizure of property without due process of law would render the tax laws unenforceable. Going through the ordinary criminal law process to collect from tax evaders would cost more than the revenue was worth.
Civil forfeiture by an administrative law body, based on a preponderance of the evidence, was originally a form of prerogative law in England. Prerogative courts like Star Chamber derived their procedural rules from the Roman civil law, as it was codified under Justinian. The proliferation of prerogative courts under the Stuarts was among the things that led to both Charles I and James II losing their thrones. But even after the accession of William and Mary, it was understood that customs and revenue were an exception to the common law’s “universal” due process requirements.
It was customs officials, operating under Admiralty law, who rubbed American colonials the wrong way and helped bring on the American Revolution. But even after the ratification of the Constitution and Bill of Rights, it was quickly established in case law that the prohibition against seizing property without a jury trial didn’t apply to customs and revenue — because it couldn’t.
So in the end, it doesn’t matter what the law says, or even how it explicitly restrains the state on paper. If government needs an unwritten exemption from the law to do what it wants, It will get it.
November 5, 2013
Posted by aletho |
Civil Liberties, Corruption, Timeless or most popular | American Revolution, Asset forfeiture, Due Process, Fifth Amendment to the United States Constitution, Human rights, Roman law, Sting operation, Temecula California, United States |
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It’s been a few hundred years since the Third Amendment was written to keep King George from quartering British troops in American homes, but a lawsuit just filed in Nevada suggests it’s as relevant as ever.
The framers of the Constitution ratified the Third Amendment to ensure citizens would never again have to accommodate soldiers, but a few centuries later it’s become more-or-less an antiquated law that’s rarely referenced in federal court. That changed recently when a family from Henderson, Nevada accused the local police department of constitutional violations after officers of the law allegedly took residence in two neighborhood homes.
According to a legal filing first obtained by Courthouse News Service, a handful of Henderson Police Department officers and the city itself are being sued for an array of charges — including Third Amendment violations — over an incident that mirrors the making of the American Revolution.
Attorneys for the plaintiffs say police officers demanded they be allowed to occupy two homes owned by their clients on the city’s Eveningside Avenue in 2011 in order to conduct an investigation involving a neighbor’s residence. When the owners refused to comply with the request, they were reportedly arrested for obstruction and brought to jail.
Police were investigating an incident at 363 Eveningside Avenue that July when Officer Christopher Worley called up the occupant of a neighboring property, Anthony Mitchell, and said he’d need to use his house in order to gain a ‘tactical advantage’ over the neighbor’s residence. Mitchell reportedly made it clear that he did not want to get involved in the probe and told Worley he would not be able to offer assistance. According to the lawsuit, Officer David Cawthorn, Sgt. Michael Waller and Worley all then “conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use.”
“It was determined to move to 367 Eveningside 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,” the report determined.
Moments later, the officers “arrayed themselves in front of plaintiff Anthony Mitchell’s house and prepared to execute their plan,” after which they “loudly commanded” they be let inside. Seconds later, Mitchell’s door was knocked down with a metal battering ram and the police entered his home.
“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,” the suit alleges.
As the police moved into the home, Mitchell was reportedly called an “asshole” by the cops, ordered to crawl on the floor and then shot several times with non-lethal ‘pepperball rounds’ from close range. He was then arrested for obstructing an officer while the cops combed through his house without permission, but not before they also opened fire at the plaintiff’s dog, prompting it to howl “in fear and pain.”
At the same time, officers approached Anthony’s parents down the block at 362 Eveningside and asked father Michael Mitchell if he’d accompany them back to a local ‘command center’ to assist with negotiating the surrender of the neighbor suspected of domestic violence. When he got there, though, he became concerned that the cops had tricked him into leaving so they could try to gain access to yet another home. Michael Mitchell then tried to head back home, but when he left the command center he was arrested, handcuffed and placed in the back of a cop car.
Attorney for the family say there was no reasonable grounds to detain Michael Mitchell, nor probable cause to suspect him of committing any crime. That didn’t keep officers from holding both him and his son Anthony for nine hours, however, before they were ultimately released after posting bond.
All criminal counts against the Mitchells were later dismissed with prejudice, but the family has now lobbed charges of their own. Their attorney is asking for a trial by jury to hear the case and ideally award his clients punitive damages for violations of the Third, Fourth and Fourteenth Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.
July 6, 2013
Posted by aletho |
Civil Liberties, Timeless or most popular | American Revolution, Courthouse News Service, Henderson Police Department, Police, USA |
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