Tag Archives: Americans for Forfeiture Reform

Civil Asset Forfeiture: Policing for Profit in Columbia, Mo Is Grinding To A Halt

In these tough economic times, how do law enforcement officers find the cash for nifty gadgets such as new militarized swat vehicles or fancy, little video cameras?

Why, they steal it.

Principally, civil asset forfeiture tactics have been abused by law enforcement agencies across the nation for decades – and it’s only getting worse.

A 2000 reform act passed by Congress seems to have had little effect, as recent stats by the Department of Justice show $4.22 billion was seized through federal forfeiture laws in 2012, up from $1.7 billion in 2011 – an increase of a whopping 248 percent.

While national nonprofits and law firms  dedicated to fending off such cash-seizing techniques continue to grow, and investigative news reports exposing the fraud pile up, the process continues unabated.

Here’s how the racket is unfolds.

Criminals are presumed innocent until proven guilty, but there’s a caveat. The feds can seize the assets of an individual for the mere suspicion of wrongdoing. Called “civil asset forfeitures,” they’re in stark contrast to criminal asset forfeitures, which allow police to seize cash and property from those convicted of a federal crime.

While criminal asset forfeiture cuts legal muster, civil federal forfeiture laws are heralded by many as entirely unconstitutional. Meanwhile, examples of wrongdoing on the part of law enforcement are easily found.

Typically after such seizures, local, state and federal law enforcement agencies split the loot, using legal loopholes that allow them to collude, although they call it “equitable sharing.”  Local agents are temporarily deputized as federal ones, which helps them get around civil asset forfeiture laws and procure the assets.

Take, for example, a case out of Nashville chronicled by NewsChannel5 in late April. An Indian-American New York businessman on his way to purchase a convenience store with a large sum of cash lost $160,000 after a routine traffic stop in December 2011.

Ultimately officers were forced to return the money – but more than a year later, and after the man proved it was for businesses purposes, not drug trafficking. In essence, he had to prove his money’s innocence. And the feds still kept $5,000 of it as part of a settlement.

Peter Strianse, a former federal prosecutor, told NewsChannel5 “he often hears from people who’ve had $10,000 or more seized through federal forfeiture laws — and he has to tell them to kiss their money goodbye.”

“It becomes just a real losing proposition,” Strianse said. “You are going to spend three times that amount of money to try to get the $10,000 back that was taken from you.”

In another example, as reported exhaustively by Keep Columbia Free (KCF) among others, the Columbia, Mo. Police Department was able to recently purchase a $200,000 armored police vehicle—a military style SUV—with the help of $36,505 in civil asset forfeiture funds.

Perhaps some of that $36,505 came from Kevin Bay, the owner of a Columbia apparel store called BoCoMo Bay. According to the Columbia Daily Tribune, Bay was arrested on suspicion of carrying unlicensed firearms and selling synthetic marijuana, but the prosecutor in the case dropped all charges; it was, at the time, not illegal to hold and sell synthetic marijuana.

Unfortunately, however, the dropped charges came after Columbia police seized hundreds of thousands of dollars worth of property from his house. He asked for it back. Local authorities refused. Bay’s case remains entangled in federal courts.

What’s worse about the Columbia case is that, any asset forfeitures – whether civil or criminal – are required under the state constitution to be given to the state’s schools and public universities – not to police departments to purchase military-style tanks.

But the following may illustrate police motives, their zeal to seize such assets.

In November 2012, Columbia Police Chief Ken Burton’s told the Columbia Police Review Board that civil asset forfeiture is “kind of like pennies from heaven — it gets you a toy or something that you need is the way that we typically look at it to be perfectly honest.”

KCF and civil asset forfeiture reform advocates Americans for Forfeiture Reform (AFR) want to keep the Columbia Police Department from getting its pennies from heaven.

As many readers of this blog know, KCF has kept vigil over the issue of civil asset forfeiture, both in Columbia, Mo and around the country since its inception in 2010.

Progress on civil asset forfeiture reform has been long and grinding, but it looks like the tide starting to pick up speed, building into a crescendo.

As I write this blog, AFR is preparing an ordinance that would ban the practice of civil asset forfeiture in Columbia, Missouri. Furthermore, AFR maintains that if Columbia’ City Council is not receptive to the ordinance, then the group plans on taking the issue directly to Columbia’ citizenry via a ballot initiative. The initiative will, presumably, appear on next year’s ballot.

Here is the ordinance that will be presented to the Columbia City Council. Read over it.

 petition

Read this, this and this to find out more about civil asset forfeiture.

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Asset Forfeiture and the Columbia City Council

At its April 1st meeting, the Columbia City Council approved the purchase of a Lenco Bearcat armored personnel carrier with a price tag well over $200k. $36,505 of the cost was to be covered by asset forfeiture funds.

For those who are unfamiliar with asset forfeiture, I’ll try and explain it in a proverbial nutshell. Before I do that, it is important to thank the policy analysts at Americans for Forfeiture Reform for their work on this subject. Without them, I doubt many people would be talking about the evils of asset forfeiture. For those who would like to learn more, AFR has a very informative website.

In a nutshell, as promised, asset forfeiture is the means by which the government circumvents the 4th, 5th, and 10th Amendments to the United States Constitution to steal property from its citizens as it makes unreasonable seizures without due process and overrides the Missouri Constitution. If property is suspected to have been used in the commission of a crime or gained as the proceeds of illegal activity, that property can be seized by the government. More on that later.

There are two problems with asset forfeiture. First is the problem of where the money goes. Second is the problem of how the money is taken.

Article IX, section 7 of the Missouri State Constitution states:

All interest accruing from investment of the county school fund, the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state, the net proceeds from the sale of estrays, and all other moneys coming into said funds shall be distributed annually to the schools of the several counties according to law.

So, according to the Missouri Constitution, moneys confiscated via asset forfeiture is to be sent to the schools. With this being the case, how are law enforcement agencies in Missouri able to pay themselves from these funds?

The answer is a federal loophole known as equitable sharing. Equitable sharing basically works like this. When local law enforcement finds some good stuff while investigating a crime, they take it and process the forfeiture through the federal government. Most law enforcement agencies have federally deputized officers who can process the forfeiture. Sometimes it’s merely a matter of paperwork. When this happens, the feds take a small cut of the proceeds and give the rest back to the participating law enforcement agencies. This allows for an end-run around the Missouri State Constitution. The money is effectively laundered through the Department of Justice.

Here is what Americans for Forfeiture Reform has to say about equitable sharing:

Initiated in 1986, the Equitable Sharing Program was designed to foster cooperation between state and federal law enforcement agencies in the war on drugs. Few states had forfeiture laws at the time and state and local agencies that participated could receive a portion of the income generated from federal forfeitures. Since then all 50 states have passed either civil or criminal forfeiture laws and now the equitable sharing program serves not only to foster cooperation, but as a way for state and local law enforcement agencies to circumvent their own state forfeiture statutes.

Once local law enforcement hands a case over to the feds, state law ceases to apply. This means that police departments in California, North Carolina, and Nebraska do not have to convict a person before taking their property. Agencies in Hawaii stand to receive as much as three times the amount of money from a forfeiture processed in federal court than they would if done through their own court system. State mandates to avoid policing for profit, such as in Missouri where forfeiture proceeds are supposed to be deposited in a fund for education, are bypassed as well.

Instead of going to schools, the money is funneled back to local police, either as grants or as cold, hard cash. As Columbia’s Police Chief Ken Burton described it, it’s like “pennies from heaven.”

I’d argue that these funds are really pennies from hell, usually stolen from citizens, but we’ll get to that later.

Not only are the forfeiture funds not going to our school children, the equitable sharing process sets up a system of policing for profit which further degrades our local political system that should be answerable to the people. Funding is one way the people of a community possess to maintain local sovereignty and control or support of local law enforcement. When law enforcement uses equitable sharing of forfeiture dollars to self-fund, the community loses one check and balance and the police have a perverse incentive to prosecute profitable crimes or wait to act until certain crimes become profitable.

Case in point: Columbia’s infamous Kinloch Ct. S.W.A.T. raid. One of the main problems with this raid was that the police supposedly had reliable intelligence from a confidential informant who stated that there was a large amount of cannabis at a residence. The police waited 8 days after the warrant was issued to kick in the door with guns-a-blazin’, shooting two dogs in front of a small child only to find a small amount of cannabis and no cash.

So why the delay? While it was explained away as a staffing problem, the real reason was likely the hope of finding piles of cash. If the police know there is a big pile of drugs at a dealer’s house and they send S.W.A.T. in immediately, all they find is the drugs. If they wait a week, hopefully the drug dealer has sold enough of his product to amass a big pile of cash — cash that can be used to buy cool new Department of Homeland Security toys and tools like the Lenco Bearcat.

There’s just no money in rape and murder these days.

We’ve established that there is a problem with where the money goes. It’s not going to our school children as directed by our state constitution and it establishes a means of self-funding for law enforcement, circumventing local control and creating perverse enforcement incentives. Now let’s tale a look at how the money is taken in the first place.

To keep things simple, let’s divide asset forfeiture into two categories — criminal asset forfeiture and  civil asset forfeiture.

Criminal asset forfeiture is when property is seized by and forfeited to the government when the owner of such property is convicted of a crime. There are some reasonable arguments that can be made in support of this system. When a person is convicted of a crime, forfeiting property can be part of the punishment. Of course we’ve discussed the problem with self-funding above, but when we look at it as punishment, regardless of where the money goes, it seems to make sense. When a profitable criminal gets out of jail, they should not be able to go home to a mansion purchased with the proceeds of his/her criminal activity.

Civil asset forfeiture is the real problem. In a civil asset forfeiture proceeding, a citizen does not need to be convicted of a crime to have their property taken by the government. In fact, the accused doesn’t even need to be tried and acquitted. All that really needs to happen is an arrest, justified or not, and the government seizes property.

Since the forfeiture is made in civil court, the old “innocent until proven guilty” protection that we all learned in 6th grade does not apply. Cases are literally made against the property and read like, “United States of America v. United States currency in the amount of $638,202.00 et al.” To get their property back, property owners must hire a lawyer to argue for the innocence of their property, which is assumed in civil court to be guilty. Sound absurd? Well, it is absurd.

The case listed in the preceding paragraph as to do with property taken from a local Columbia business owner during a raid executed by the Boone County Sheriffs Department. Kevin Bay, co-owner of a local business, BoCoMo Bay, was suspected of a crime. Once arrested, the charges against Mr. Bay were quickly dropped, but not before several million dollars worth of cash, precious metals, collectible coins, and collectible firearms were seized and made subject to civil asset forfeiture.

Read about Kevin Bay’s ordeal HERE.

That’s right. Mr. Bay was arrested, never officially charged with a crime, yet faces a lengthy federal court battle to have his rightful and legal property returned to him. This is theft, plain and simple.

While it might be worth it, although a hard stone to chew, for Mr. Bay to spend tens of thousands of dollars to get his millions returned, if he is successful, imagine a case where only $10,000 worth of property is seized. Why would a victim if civil asset forfeiture spend $20,000 in legal fees fighting for the return of $10,000. In these cases, the only choice is to forfeit the money.

This happens all the time. Click here to see a raid where a grandmother’s $5000 dollars was seized because someone in her house had a crack rock and pipe in his pocket. That money is gone, no matter what.

At last week’s Columbia City Council meeting, the council approved the use of $36,505 of asset forfeiture funds to purchase an APC for the CPD. Here is the council discussion regarding the purchase during which Michael Trapp leads the charge for accountability in the use of the vehicle. Asset forfeiture gets a mention during the discussion, but comes up later, in a meaningful way.

During the public comment portion before the vote, Keep Columbia Free’s Treasurer Elect addresses the council.

Keep Columbia Free President Mark Flakne also addressed the council.

And it looks like someone on the council heard us. At the end of the meeting, Councilperson Laura Nauser asked for a staff report on the use of asset forfeiture dollars in the City of Columbia. She expressed an interest in starting a public discussion centered around asset forfeiture to see if it is something that our community wants to use as a source for funding police.


We have also heard from another councilperson, who shall remain nameless for the time being, who said that he is open to the idea of championing asset forfeiture reform in Columbia, especially with the passage of the 911 tax which will allow for the return of funds to the city that can be used to replace forfeiture funds.

Please help educate your friends and family about civil asset forfeiture. Sadly, the majority of folks in Columbia and across the country simply have no idea what asset forfeiture is. Thanks to Americans for Forfeiture Reform and other groups like the Institute for Justice, people are waking up to this practice and overwhelmingly finding themselves to be repulsed by it.

Read about some of the forfeiture cases being handled by the Institute of Justice HERE

Now is the time to call your councilperson and let him/her know in no uncertain terms that it is time to end the use of asset forfeiture to fund our local police. We should fully fund our police department through traditional means. Using asset forfeiture as a funding mechanism, while technically legal, is a morally abhorrent practice. We should all be demanding local sovereignty, government accountability, and local control of our law enforcement.

 

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CPD Subject of Forfeiture Complaint

A complaint against the Columbia Police Department alleging that the department has violated state law was recently jointly filed filed with the City Clerk by Citizens For Justice and Americans For Forfeiture Reform. Citizens For Justice is a local police watchdog group know for filming encounters with law enforcement. Americans For Forfeiture Reform is a national group, founded in Columbia, MO, that works to expose civil asset forfeiture abuses and reform asset forfeiture laws.

From the complaint:

“The Columbia Police Department failed to submit the required annual report/audit detailing their use of the federal forfeiture system for the year of 2011, to the Missouri State Auditor (and likely the Missouri Department of Public Safety). This report was due January 31, 2012.

“The consequence for failing to file this report, as clearly stated in the referenced statute, is that the Columbia Police Department is ineligible to receive funding from the Missouri Department of Public Safety (MODPS).

“Although the MODPS has thus far failed to comply with my request for a record of all funds issued to the CPD for the years of 2011 and 2012, I can tell you from my past research that the liquor compliance checks initiative is being ran by CPD, using of [sic] funds allocated through the MODPS.

“Accepting funding from the MODPS for this, as well as other programs, while simultaneously failing to file these reports, means that the CPD is violating the statutes 2-fold.”

Update — A few weeks after filing the complaint, MODPS confirmed that no reports had been filed by the CPD and the CPD was actively using MODPS funds to facilitate four separate programs.

You can read the entire complaint with supporting documentation and statements from both CFJ and AFR here. If the embedded document is not big enough for your device, click the link at the top and you will be taken to a larger version of the PDF.

CFJ/AFR Complaint by Keep Columbia Free

The CPD, Boone County Prosecutor, and the Boone County Sheriff have all been in the news lately for asset forfeiture actions and questionable weapons seizures….

The CPD Seizes Money to Spend On Itself – SWAT Seizes Money and Buys New Tools

Local Man Fights To Have Property Seized By Boone County Sheriff After Charges Dropped

CPD and Prosecutors Hit With Lawsuit Alleging Illegal Gun Seizures

The illegal gun lawsuit has prompted attorney Stephen Wyse to post this message asking for other victims to come forward.

wyse

 

Add the CFJ/AFR complaint to this list. Will Chris Koster step in?

–Mark

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 RENTERS, BEWARE!

fred schmidt

If you are a renter or landlord in Columbia, MO, you should be concerned. In fact, you should be angry. During their January 7th meeting, while nearly all student renters were out of town, the Columbia City Council voted away your 4th Amendment rights by passing an ordinance that allows police and government bureaucrats access to your personal rental information, including your Social Security Number and financial information, without a warrant.

THE FOURTH AMENDMENT: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The ordinance that was passed gives police and city bureaucrats access to all lease, rental payment, and tenant information if they are investigating any code violation.

It shall be unlawful for any owner, operator, agent or property manager of a rental unit to fail to immediately exhibit, upon request by a police officer or city inspector investigating any code violation, all lease, rental payment, tenant information and the zoning occupancy disclosure form pertaining to the unit.

The words to pay attention to here are “any” and “all.” This means that if there is chipped paint on your rental house or a cracked sidewalk out front, it’s open season on all of your personal rental information. If you lived outside the city limits of Columbia, access to this same information, under the same circumstances, would require a warrant.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures was an important driver behind the American Revolution as evidenced by James Otis’s famous speech against King George’s writs of assistance. Our friends over at Americans For  Forfeiture Reform wrote a nice post about Otis. Read it HERE. Writs of assistance were basically open ended, unlimited search warrants granted to officials. In effect, the Columbia City Council granted a writ of assistance to the Columbia Police Department and city inspectors. 

Otis called writs of assistance…

…the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English lawbook.

It is important to note that renters are oftentimes among the most vulnerable populations in our city, either transient students or permanent residents who lack the means for home ownership. In Columbia, if you have enough money to own a home, you enjoy 4th Amendment protections from warrantless searches. If you cannot afford to own your own home, our City Council says that you do not deserve the same protection under the law.

This ordinance is aimed at addressing the problem of over-occupancy in Columbia’s rental property. Local attorney Skip Walther made some very strong arguments to the Council against this silly ordinance. In his remarks to the council, which were completely ignored, he points out three things:

1. Over-Occupancy is not a problem.

Columbia is home to approximately 25,000 rental units. In 2012 there were 46 over-occupancy complaints filed with the city. Of the 46 complaints, 26 were found to be invalid after investigation. This means that there were 20 valid over-occupancy complaints sustained in 2012. This means that in 2012 over-occupancy was a problem in .08% of Columbia’s rental properties. That’s less than one sustained infraction for every 1000 rental units. This ordinance is a needless action that does more harm than good and does nothing to curb over-occupancy.

2. Cost.

Although the proposal for the ordinance mentioned that there would be no cost to the City, there is a cost. Landlords will be required to collect and maintain files on every rental property they own. Landlords will also be required to make changes to their leases and tailor leases to specific properties. This, of course, will require the expertise of an attorney and represents a significant cost for the property owner. Considering that many property owners in Columbia are small investors who make very little, if any, immediate profit from their properties, the cost of compliance with this ordinance represents a significant hit — a hit that without a doubt will be passed on to renters. In fact, these costs will be passed on to renters by landlords large and small.

3. Constitutionality.

Walther also argues that the ordinance may very well violate the Constitutional rights of both the landlord and the tenant, rights guaranteed by the 4th amendment.

You can watch Walther’s impressive address to the Council in this video.

 

Later in the discussion, Councilperson Fred Schmidt responded to Walther with remarks that demonstrate the antagonistic relationship between the Council and Columbia’s rental industry. Schmidt openly accused all of Columbia’s landlords of fraudulently refusing to return security deposits to student tenants. Schmidt literally suggested that landlords use these funds, funds which Schmidt insinuates are stolen, to offset the expense of compliance with this ordinance.

 

The landlords of Columbia should be more than angered by the slanderous statements made by Fred Schmidt.

I propose that the rental property owners of Columbia form a coalition to fight this harmful and ultimately idiotic ordinance. Landlords should all chip in to create a legal defense fund. Keep Columbia Free’s legal council believes that landlords do not have to wait to be fined for not complying or wait for a 4th Amendment violation via an illegal search to have standing to file suit against the City of Columbia on Constitutional grounds. Merely being asked to comply with this illegal ordinance should be enough to provide standing. If every landlord in Columbia were to chip in $1 for every unit, there would be $25,000 available for a lawsuit against the City.

I also propose that all of Columbia’s renters and renter advocacy groups work together to protect renter information from from warrantless searches and seizures under this poisonous ordinance.

Please contact your City overlords immediately. You will find contact information HERE.

This incremental erosion of our Natural Rights must be addressed at every turn lest we become frogs boiled by the cretins who govern us.

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Cannabis v. Child Molestation: Which is Worse?

If you ask America’s perverted criminal justice system you’ll find that selling cannabis is more than twice as bad as molesting children (and stealing). In the past week, two stories demonstrating this fact appeared in the the Columbia Daily Tribune.

The first story reported that Eric McCauley of Columbia was sentenced to 23 years in prison for conspiracy to sell marijuana, the same plant smoked by both Barack Obama and Newt Gingrich. According to the Tribune…

          A 30-year-old Columbia man was sentenced yesterday in federal court to 23 years in prison without parole for his role in a conspiracy to distribute marijuana in Boone County.

          Convicted of 29 charges by a jury in March in Missouri’s Western District U.S. Court, Eric S. McCauley’s sentence is the result of his role in one of the Columbia Police Department’s largest-ever seizures of marijuana, according to a news release from U.S. Attorney Beth Phillips. Law enforcement seized $224,663 in cash during the investigation, and in a 2007 search at a Columbia residence, 240 pounds of marijuana was found.

          McCauley was found guilty of drug trafficking, distribution, possession with the intent to distribute and money-laundering. Evidence indicated McCauley led a conspiracy responsible for distributing marijuana from 2005 to 2008, the news release said.

The local cops swiped 1/4 million dollars from this man and now the courts are sending him to prison on a 23-year sentence for crimes that involved no violence.

Compare McCauley’s story with this story which ran in the Tribune just four days later.

          A Columbia man who in separate cases pleaded guilty to stealing nearly $9,000 from a Burger King restaurant and photographing a 13-year-old boy’s genitals will serve 10 years in prison…

          Three photos of the victim’s genitals and buttocks were taken in September by McCollum, who told the court yesterday of his remorse and newfound motivation to overcome his past. He and his attorney argued for a suspended execution of his sentence, which would have placed him on probation.

          McCollum also is under investigation in Wyoming for the sexual assault of children, but charges have not yet been filed…

          Between March 5, 2010, and June 10, 2010, McCollum stole $8,909 from the Burger King at 3700 Hyde Park Ave. while working as an assistant manager, police said. McCollum was entering fake credit card totals to take money from cash sales.

 

Wow! A weed dealer, charged with no gun crimes, gets 23 years while a serial child-molester and thief gets only 10 years. Are our prisons so jammed with non-violent drug offenders that there is no room left for thieves and child-molesters? America’s criminal justice system is broken and the drug war is to blame.

 

 

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Petition in Support of Chief Burton

Read all about the issue HERE 

Click HERE to go to the online petition. 

 

 

ANYONE CAN SIGN. YOU NEED NOT BE A COLUMBIA RESIDENT.

Dear Mayor, City Council, and City Manager of Columbia, MO,

We, the undersigned, wish to express our support for Police Chief Ken Burton in his work to improve the Columbia Police Department. 
1. We agree with his decision to fire Rob Sanders.
2. We support his willingness to work with groups such as The Bias-free Columbia Coalition.
3. We sincerely hope that he will continue to serve as Columbia’s Chief of Police for the foreseeable future. 

Click HERE to sign the online petition

 

 

 

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AFR Guest Blog: Jonathan Whitworth’s Dismissed Civil Suit

Keep Columbia Free is happy to have a guest blogger in the house. Scott Alexander Meiner, a policy analyst at Americans For Forfeiture Reform, has penned a blog breaking down U.S. District Judge Nanette Laughrey’s recent ruling in the case stemming from Columbia’s infamous SWAT raid at the home of Jonathan and Brittany Whitworth. In his blog, Scott breaks down the problems with the ruling and the scourge that is “qualified immunity.” Enjoy…

BY SCOTT ALEXANDER MEINER, ON NOVEMBER 29TH, 2011

Last week, U.S. District Judge Nanette Laughrey granted summary judgement to dismiss the civil rights suit (raised under 42 U.S.C. § 1983of Jonathan Whitworth, Brittany Whitworth, and their son. The civil rights claim stems from a February 2010 Columbia, Missouri SWAT raid that went viral when police footage was obtained by the Columbia Tribune.

At issue in the motion for summary judgement was whether the police officers’ discretionary behavior was reasonable, in the context of the situation, and whether it violated clearly established statutory or constitutional rights of which a reasonable person would be aware (Harlow v. Fitzgerald, 457 U.S. 800 (1982)Graham v. Connor, 490 U.S. 386 (1989)).

Such motions, under Rule 56 of the Federal Rules of Civil Procedure, are to be looked at in the most favorable light to the non-movant (CPD).

In reality, law enforcement is afforded such favorable light, via judicial imaginings of what might have been reasonable, that “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335 (1986)

It is no surprise that Judge Laughrey was able to rationalize a context in which it might have been reasonable for an officer to kick Jonathan Whitworth in the head while he lay face down, unarmed, before a fully armed SWAT tactical unit.

“Thus, even if Hendrick indeed kicked Whitworth, a single kick to force swift compliance with an order, and to deter hesitation incompliance with future orders from a dangerous suspect, would be objectively reasonable in this context. It is also uncontested that Whitworth suffered no injury from this contact except pain.”  Whitworth v.  Bolinger

In the execution of the warrant, a paramilitary SWAT team entered the Whitworth’s family home. Police fired seven shots while in the Whitworth home. Both of the Whitworth family dogs were shot. One of the dogs was killed. The couple’s seven year old child was witness to the raid. Jonathan Whitworth was kicked in the head. Brittany Whitworth and her child were directed at gun point.  As a result of the the raid, the police were able to find some drug paraphernalia and a small amount of cannabis. The police, initially, charged the Whitworths with child endangerment.

“The Court agrees that ideally officers would execute search warrants without pointing a gun at women and children not suspected of committing a crime. On the other hand, where officers are aware that a dangerous suspect and two large dogs are on the property, a reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals to move swiftly through a potentially dangerous situation. This is especially true, where shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr.Whitworth–who was lying on the floor–and the danger of resistance by any of the Whitworths was arguably at its highest. In this context, the behavior alleged by the Whitworths did not violate a clearly established constitutional right. The SWAT officers are thus entitled to qualified immunity on this claim.” Whitworth v.  Bolinger

This is entirely consistent with scores of cases wherein citizens were plainly wronged and yet can find no corrective, civil recourse.

In 2010, Radley Balko described the false arrest and failed civil suit of Brian Kelly. The ordeal is as instructive as it is scary.

“When Rogers returned from writing a ticket, he noticed Kelly’s camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly’s recording violated Pennsylvania’s wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers “bumped” (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly’s leg to bleed. Kelly spent the night (27 hours) in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, “Obviously, ignorance of the law is no defense.”

Here’s the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state’s wiretapping law because public officials have no legitimate expectation of privacy while they’re on the job. The order for Kelly to stop videotaping was illegal. So was Kelly’s arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly’s suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly’s civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger’s actions in violating Kelly’s rights were unreasonable.

So it isn’t enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.”

Kelly’s civil suit (Kelly v. Borough Of Carlisleclaimed that the arrest had violated his rights guaranteed by the First and Fourth Amendments. Upon dismissal by summary judgement, Kelly appealed to the Third Circuit Court of Appeals. Kelly’s First Amendment claim was rejected. All claims against the Borough of Carlisle were rejected. The summary judgement on Kelly’s Fourth Amendment claim was vacated and remanded for further proceedings consistent with the Third Circuit’s analysis. The remand instructed,

“that police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause. That reliance must itself be objectively reasonable, however, because “a wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one.”  Accordingly, a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.”

In analyzing the holding, Harvard Law Review noted,

“The Third Circuit had previously allocated the burdens of production reasonably: once the plaintiff established a prima facie case of wrongful arrest, the court required the police officer defendant to show probable cause, and it required the defendant to prove his or her qualified immunity defense. This arrangement accommodated the plaintiff’s limited right to pretrial discovery and the officer’s information advantage regarding the plaintiff’s arrest. The court’s opinion in Kelly will upset this sensible allocation in cases in which the police officer has consulted with a prosecutor: the plaintiff will now have the burden of showing that the officer was objectively unreasonable in following the advice. Kelly is representative of the plaintiffs on whom this burden will fall. He was neither committing nor about to commit a crime. A police officer nonetheless arrested him, and he went to jail. Because the arrest was made without probable cause, it violated Kelly’s Fourth Amendment right. Moreover, the law was clearly established in the relevant jurisdiction that the officer’s basis for arresting Kelly did not constitute probable cause. Thus, a reasonable officer would have known that he was violating Kelly’s rights. Yet, solely because a prosecutor confirmed the police officer’s inaccurate interpretation of the law, Kelly (and similarly situated civil rights plaintiffs) will now be required to produce evidence to rebut the judicially mandated inference that the police officer’s violation of his clearly established constitutional right was objectively reasonable. This presumption is unlikely to increase legal consultation; instead, it will allow courts to relieve law enforcement officers of their responsibility to exercise independent professional judgment and will decrease the likelihood that constitutional violations will be redressed.”

Qualified immunity has become so expansive that it frequently fails to correct these constitutional violations.

Simultaneously, law enforcement is increasingly funded by separate revenue streams that are not directly answerable to local voter intent.  Big money is coming in from asset forfeitures and federal law enforcement grants. Each dollar acquired outside of the legislative appropriation model is one less piece of control that the citizenry wield. The funds are not enough to ignore the citizenry, but we do see prioritization that is substantially at odds with voter intent.

The Whitworth warrant was predicated on unnamed sources that claimed Jonathan Whitworth was a major cannabis dealer. That was more than five years after Columbia, Missouri passed a proposition to make the enforcement of cannabis the lowest priority by law enforcement. The measure passed by a 61% to 39% vote.

An estimated 130-150 SWAT raids occur everyday in the United States. That is some 40,000-50,000 paramilitary operations every year.

We are simultaneously escalating domestic paramilitary activity, increasing immunity from prosecution, and ceding budgetary control.

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