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Law Enforcement: Dog-Killing SWAT Raid Continues to Reverberate in Missouri College Town

The February SWAT team raid on Columbia, Missouri, resident Jonathan Whitworth and his family didn't start causing political tremors until video of the raid, in which one of the family's dogs was killed and another wounded, went viral on YouTube last month. But now, even after the Columbia Police Department has reined in SWAT with new policies, outrage and concern over the raid and the way the SWAT team has been used continues to reverberate.

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That was evident at a city council meeting Monday night, where a citizens' group whose formation was inspired by the SWAT raid, CoMoCitizens, urged the council to go a step further and act to make permanent the reforms announced by Police Chief Ken Burton. According to its web site, the group opposes the use of SWAT and the use of search warrants in nonviolent cases, including drug possession and distribution.

"It goes without saying that it is policy that needs to be changed," Warren said in remarks reported by the University of Missouri newspaper The Maneater and the Columbia Missourian. "Chief Burton has made significant policy changes and I've come here to ask you to make these policy changes permanent. I would also like to request that you consider enacting a policy that prohibits execution of search warrants which are inherently violent for nonviolent offenses," said Warren. "This would ensure the public that there is at least less of a risk of an incident such as the February 11 SWAT raid occurring in our community."

Making the restrictions on SWAT and the execution of search warrants binding would reassure the public and keep law enforcement officers safer, Warren said. "The raid itself is what escalates the situation to out-of-control mode," he told the council before reading from Radley Balko's Overkill: The Rise of Paramilitary Policing in America. "These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors," Warren quoted Balko.

The council did not act on CoMoCitizens' requests, but the emergence of the group is yet another indicator that the February SWAT raid has roused Columbia's citizenry. And that is precisely what it will take to make police law enforcement rein in its aggressive tactics against the citizenry. Maybe something good is coming out of that misbegotten raid after all.

Police Dept. Teaches Citizens How to Flex Their Rights

Police Chief Ken Burton in Columbia, MO took a lot of heat over that brutal SWAT raid in which two dogs were shot in front of a small child. Then, he surprised and impressed all of us by expressing his support for marijuana legalization in order to prevent such outrages in the future. Here's some more evidence that Chief Burton truly cares about protecting the public from police abuse:


In the wake of reports showing disproportionate traffic stops of black motorists in Missouri urban areas, Columbia police statistics were released showing more balance here. The proportion of black detainees is lower than in 2007, the peak year.

Columbia police find no reason to change their procedures, which they believe with good reason are not producing improper actions against racial minorities, but they have taken a good pre-emptive step by creating a video intended to inform citizens of their rights when confronted with police during a traffic stop or other questioning incidents.

Titled "Ten Rules for Dealing with the Police," the video recently was shown by Chief Ken Burton to gatherings of the Missouri Association for Social Welfare and the Columbia chapter of the National Association for the Advancement of Colored People. [Columbia Tribune]

Of course, the video was actually created by Flex Your Rights, not the Columbia Police Department. But it's fantastic to see law enforcement embracing our materials. Hopefully the positive press their efforts have generated will inspire other police departments to do the same.

Teachers Suspended for Showing Flex Your Rights Video

Two teachers in Norfolk, VA were suspended this week after showing BUSTED to a 12th grade government class. Apparently, Americans are supposed to remain ignorant about their basic constitutional rights, so we can keep arresting them at record rates every year.

You can read my thoughts on the matter at the Flex Your Rights blog.

Drug Testing: Louisiana House Committee Passes Voluntary Drug Tests for Officials Bill

Setting aside other, less pressing business, the Louisiana House Committee on House and Governmental Affairs approved a bill, HB 1352, which would allow lawmakers and elected officials to take a voluntary drug test and mental health evaluation after election, with the state paying the tab. The bill would also allow testees to post the results on the Internet. The bill is the brainchild of Rep. John LaBruzzo (R-Metairie), who has also sponsored a bill mandating drug testing for welfare recipients.

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John LaBruzzo on the Rachel Maddow show
Under the bill, the House, Senate, or elected official's office would have to pay the cost of the drug test, which could be as much as $40. No figure was given for the costs of a mental health examination. The bill now moves to the House Appropriations Committee, which will evaluate its costs.

LaBruzzo's bill originally contained only the drug testing provision, but according to the account of the New Orleans Times-Picayune, Rep. Nancy Lang (R-Lafayette) half-jokingly asked, "Have you considered having legislators undergo a mental health test?" An amendment to that effect was then offered and accepted.

Thousands of state employees, as well as all applicants for state jobs, are required to take drug tests under state law now. "We should apply ourselves to the same rules as state employees," LaBruzzo said.

"I think it is a lot of window dressing," said Rep. Patrick Connery (R-Harvey), before voting for it. He said legislators could simply abstain from drugs for long enough to pass a drug test, then take one and post the results online.

"If it is voluntary, and somebody is on drugs, why would he take it?" asked Rep. Wayne Waddell (R-Shreveport). "You are putting the perception out there that those who don't take it are on drugs."

The evidence is building that those legislators really do need those mental health evaluations.

Blogger Forces Drug Czar's Office to Correct False Information

We talked here a while back about the drug czar's misleading use of drug testing data to suggest that shocking numbers of weekend drivers are high on drugs. Well, Pete Guither actually went and did something about it, creating a petition for correction to the drug czar's misleading propaganda. And the best part is that it actually worked:

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF NATIONAL DRUG CONTROL POLICY
Washington, DC

April 15, 2010

Mr. Peter Guither
909 W. Market Street
Bloomington, IL 61701

Dear Mr. Guither:

This letter is in response to the petition for correction that you emailed to the Office of the National Drug Control Policy on March 16, 2010. The sentence on the ONDCP website regarding the Department of Transportation study has been reworded to state “that 16 percent of nighttime weekend drivers tested positive for a licit or illicit drug.” This should fully address the specific point raised in your correspondence.

Pursuant to Section III of ONDCP’s information Quality Guidelines, you have a right to request reconsideration if you believe appropriate corrective action has not been taken. Such a request must be filed within 30 days of notification of ONDCP’s response to your original request.

Sincerely,

Timothy J. Quinn
Chief of Staff

It may seem like a small victory at first glance, but the very notion of the drug czar's office actually accepting a correction from a reformer is pretty remarkable. Almost everything that office does is built on a foundation of deception, and if we're able to hold them accountable to the truth on any level, it begins to even the playing field as we make the case for reform. Pete may only have succeeded in correcting one specific lie, but in doing so, he may have prevented any number of similar lies from being told in the future. Awesome job.

Fighting for Legalization Isn't Enough. You Need to Know Your Rights.

As the debate over marijuana legalization rages on and U.S. drug policy draws more public scrutiny than ever before, the arrests and injustices just keep adding up. We can debate the law until we're blue in the face, and we should, but it's equally essential that every American understand the terms of engagement in a battle that catches peaceful people in its crossfire each and every day.

It is because so few of us truly understand our basic rights that police are able to trample them so routinely. But it's also the haunting thought of that knock at the door, and the uncertainty of how to respond, that prevents so many among us from ever coming out of the closet and lending their voices to the debate. Fear and intimidation are the vital instruments without which the war on drugs would have been banished to the bowels of history long ago.

If you haven't yet seen the new Flex Your Rights video 10 Rules for Dealing with Police, please take this opportunity to do so, and please share it with the people you care about. It won't end the drug war, but it might help you get a better night's sleep. And you deserve that.

Refusing a Search Doesn't Give Police the Right to Detain You

Here's an Arizona case that illustrates why you should never give police consent to search your vehicle:


The state appellate court has overturned the cocaine-transportation conviction of a Canadian man passing through Flagstaff after ruling the search of his vehicle was illegal.

The reason: The Arizona Department of Public Safety officer who stopped Alvin J. Sweeney, 53, didn't have reasonable suspicion to search his vehicle. [AZDailySun.com]

The suspect refused the search, and although the officer detained him and ultimately searched the car anyway, the whole thing was ultimately thrown out in court. If he'd agreed to the search, the evidence would have been admissible and he'd still be in jail.

Something to keep in mind, even if you've never broken a law in your life. Unless you're the only person who's ever set foot in your car or house, how can you really be sure there's nothing that could get you in trouble?

Commentary: What Not to Do if You Grow Marijuana and Police Visit You

by John Calvin Jones, professor of law, American University in Bosnia and Hercegovina

[Editor's Note: Last week we reviewed Flex Your Rights' new video, "10 Rules for Dealing with Police." Coincidentally, this piece from law professor John Calvin Jones came in over the transom at the same time. Like Flex Your Rights, Jones, too, is attempting to educate Americans about how to effectively exercise their constitutional rights -- and what can happen to you when you fail to do so. Jones' rules are a little different from Flex Your Rights' "10 Rules," but both are saying essentially the same thing. Here we present Jones' analysis of the case of one New Jersey man and what happened to him when he failed to exercise his rights.]

The latest case of a naïve marijuana grower comes out of New Jersey, where, on March 15, an appellate court affirmed a ruling from 2007 which denied a motion to suppress evidence: a seizure of a lot of weed from the house of one Brian McGacken. Recent headlines on Slate and other web sites emphasized why the police arrived at McGacken's house in the first place -- apparently he and his girlfriend were loud while having sex -- so loud that police received an "anonymous 911 call." Having the police come to your home because of loud sex could lead to amusing anecdotes down the years, but it is doubtful McGacken is finding anything to laugh about.

Instead, we have a scenario where police enter the house, follow McGacken upstairs (without being invited), smell pot, then start asking questions, and well, we know the rest. Before reviewing the legal arguments and ultimate ruling of two New Jersey Appellate Division judges (Lihotz and Ashrafi) in New Jersey v. McGacken, let me start with the errors of Brian McGacken.

According to the opinion, as admitted by McGacken, when police arrived at his place to investigate the 911 call, McGacken invited the police into the foyer. Rule #1: If you are growing any plants, much less have any weed in your domicile, do not invite the police inside. Then, after McGacken explained that any reports of screaming were accurate -- as then confirmed by his sex partner, police asked McGacken for ID. Rule #2: If you are growing weed in your house, speak to the police as little as possible. And since the Supreme Court ruling in Hiibel v. Nevada, 542 U.S. 177 (2004), unless you live in one of 20 states that have a law requiring you to identify yourself, which NJ does not, then you do not need to say anything to the police. That is, it is not a crime to refuse to answer or ID yourself -- even the Appellate Court in McGacken's case noted that. Regardless, if you do live in one of those self-ID states, just give your full name -- do not lie -- and then say nothing more.

By the way, the Supreme Court qualified the issue of ID laws in Hiibel, noting that one must identify only when police say that they have reason to believe that a person is suspected of committing a crime. If you ask the police if you are suspected of a crime, and they say no, as was the case with McGacken, not only are you not required to show ID, but you should then apply Rule #3: Always ask the police, "Am I free to leave?" If they say "no," but are still in your house -- tell them to leave, that you do not consent to their presence or search, and get the phone and tell them that you are calling your lawyer. (The reason you say that you are calling a lawyer is two-fold: first, it puts the cops on notice that they should go harass someone else; and second, while they will tell you that you cannot use the phone, they know that one can always have counsel present while in custody -- so you can surely have advice of counsel when you are not in custody). Of course, you do not have to call any real lawyer, just call your own voicemail and make a recording of the events in a loud voice saying stuff like: "The police are in my house/apartment without a warrant and no probable cause, they are not invited, I have asked them to leave, I do not consent to any search, etc." If after all that, the police still do not leave, just sit there -- and be quiet.

Needless to say, McGacken did not follow rules #2 or #3 either. But, according to the court opinion -- McGacken admitted he went upstairs to get his ID, and was followed by New Jersey State Trooper Thomas Holmes.

According to the opinion, "Trooper Holmes testified that he followed defendant upstairs for two reasons -- to protect his own and his fellow trooper's safety and to make sure there was no other person in the home in need of aid." But did he really?

Earlier in the opinion, the judges wrote that:

"Trooper Thomas Holmes and a fellow trooper responded [to the 911 call]. [Once on the scene, they] heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police. Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation."

If the two occupants of the house said that they are the only two in the house, and the officers believe them, then there is no reason to make sure there is no one else in the house "in need of aid." Further, if the police accept the explanation for the screaming, and the police are ready to end a routine follow-up to an unnecessary 911 call, then there is no reason to suspect that Trooper Holmes or his fellow trooper would be at risk from the sex screamers. But if the police thought that McGacken was lying or acting suspicious, then there might be cause to keep an eye on McGacken. But, according to the ruling, that's not what police thought.

"No evidence suggested [that] the police had any suspicion of criminal activity by defendant or his girlfriend, or [that the police] wished to conduct a search for evidence of crime. Trooper Holmes testified that... nothing that defendant and his girlfriend did or said downstairs raised suspicion of criminal activity."

The police and the court admit that Trooper Holmes lied when he testified there was no suspicion of criminal behavior. He could not have believed the report of the two lovers, but still had cause to look around to see if someone were in need of assistance. And thus, because he did not believe their explanation, Holmes implied that the two were hindering or obstructing an investigation, an arrestable offense.

But as the court recognizes that Holmes declared that he had no suspicions, that means Holmes believed no one else was in the house -- therefore there was no need to go upstairs in the name of what the court references as an exigent circumstance, of the sort where police may enter a house without a warrant so as to preserve life or prevent serious injury. Again, because Trooper Holmes testified that he had no suspicions that McGacken and his girlfriend were lying, he had no basis to justify a warrantless intrusion.

But that's not how the appeals court ruled. The New Jersey judges referred, over and over, to the idea of this type of warrantless search as necessary to save lives -- and not search for evidence of a crime. So, what did Trooper Holmes do and see when reaching the upstairs bedroom with McGacken? First the court says that Holmes smelled marijuana.

What happened next for this Trooper -- who was not searching for evidence of a crime, but merely responding to a perceived exigency to save a life? According to the court:

"Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. [Holmes] asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw, in plain view, a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest."

Thus, two New Jersey Appellate Court judges decided to abandon all pretense of reason. Without comment they claim that Holmes had to go upstairs to find someone to rescue, though he did not suspect anyone was in need of aid.

McGacken's misadventure leads us to yet another rule, Rule #4: When police ask you something, do not answer. Police are not your friends. They use drug arrests -- the easy pickings -- to gain fame (for some reason local press usually lauds these cops) and fortune. All states and the federal governments have seizure laws that allow law enforcement to take cars, houses, bank accounts, and boats on the mere suspicion that you are engaged in drug-related criminal activity. You can even be acquitted or have charges dropped, yet the cops can keep your stuff.

But more importantly, getting back to Rule #4 and anything related to a search of your person, house, car, or stuff, note what the court did not report that Holmes did after seeing McGacken move the tray? The police officer did not go over and grab the tray. Even though the court said that Holmes was within his right to make a warrantless search given the exigent circumstance of trying to save someone in imminent harm -- and not intending to seize evidence or make an arrest, Holmes did not even try.

Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession. That leads to Rule #5: Never consent to a search. Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession! That is why you are not supposed to answer their questions -- just call the lawyer (see Rule #3 above).

Holmes was careful to say that in no way did he look under the couch to see what was on the tray. However, Holmes testified, and the court explained, that the seized marijuana plants were "in plain view" (meaning not in a closed space, drawer, etc.). Even Trooper Holmes knows Rule #6: If it is in plain view, it belongs to the police, not you!

This exercise in legal sophistry and hypocrisy is not to advocate that anyone should violate state or federal laws -- especially drug laws. Instead it should serve to emphasize that every person should know the limits, guidelines, and rules on constitutional provisions about search and seizure. Even in those states that allow licensed grow operations the Obama administration is still making busts. If you want to stay out of prison, or reduce your chances of getting busted, follow the general advice of The Clash and "know your rights."

Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches

For the third time in the past nine years, New York City has been forced to pay big bucks for subjecting nonviolent prisoners -- including minor marijuana offenders -- to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to end the most recent lawsuit stemming from the searches.

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The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007.

In 2001, under the Giuliani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002.

The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007.

Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice."

It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts.

Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets -- which you are not required to do -- and then charging them with public possession of marijuana, a misdemeanor.

David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search.

"I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated."

"I don't know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge."

And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.

Were You Strip-Searched After a Minor Bust in New York City Between 1999 and 2007? There Could Be $$$$ Waiting for You

As the Chronicle story below reports, New York City is about to pay yet again for unlawfully strip-searching minor offenders, including people busted for public pot possession. If this includes you, it just might behoove you to contact the law firm handling the lawsuit in question, Emery, Celli, Brinckerhoff, and Abady. Here's the story: Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches For the third time in the past ten years, New York City has been forced to pay big bucks for subjecting non-violent prisoners—including minor marijuana offenders—to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to settle the most recent lawsuit stemming from the illegal strip searches. The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007. In 2001, under the Giulani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002. The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007. Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice." It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts. Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets—which you are not required to do—and then charging them with public possession of marijuana, a misdemeanor. David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search. "I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated." "I don’t know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge." And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.
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