Morning Links

Thursday, November 15th, 2012
  • I'm overcompensating.Your drug war at work: St. Paul, Minnesota cops stomp a man’s head, then fire a flash grenade at his disabled mother curing a cocaine raid. She suffered third-degree burns. They found three grams of pot and a legal handgun. Taxpayers, not the cops, will pay the two a $400,000 settlement.
  • Man attempts to become the walking embodiment of New York Times trend stories.
  • LDS elders get swept up in a SWAT raid while at the home of two drug suspects they were counseling.
  • Last night, Reason’s Nick Gillespie debate former DEA administrator Asa Hutchinson on drug legalization. You can watch here.
  • The federal courts continue to shield even egregious prosecutorial misconduct from any real accountability. Smart lawyerly people: I haven’t read the 11th Circuit opinion yet, but given that absolute immunity is judge-made law, wouldn’t the Hyde Amendment, which is statutory law, take priority in this case?
  • Headline of the day.
  • Striking photos from the Munich subway system.
  • Naomi Klein: People who oppose corporate welfare are just shilling for corporations. Or something like that.
  • The photo is from a series of raids on backyard marijuana gardens in Santa Rosa, California. Best line from the article: “O’Leary, the sheriff’s lieutenant, said the show of force by authorities and their tactics were deliberate, selected in part because there is a heavy gang presence and lots of children in the neighborhood.” Ah, so there are children nearby. Well then let’s make the raids as volatile as possible!
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36 Responses to “Morning Links”

  1. #1 |  marie | 

    The St. Paul cop who got that search warrant? He’s a canine officer now. Naturally.

  2. #2 |  Boyd Durkin | 

    the show of force by authorities and their tactics were deliberate, selected in part because there is a heavy gang presence

    This ain’t how gangs work. Reminds me of the Joker telling Batman “You have nothing, nothing to threaten me with.” Gangs see these white boys all dressed up in armor and they see a bunch of clueless, scared fools. They also project good profits for 2013! The cops keep trying to scare gangs, because that’s how cops are used to handling things. Does not work. Just escalates violence.

    And, as RB mentioned, the kids. Beside the inherent danger they’ve been put in, they see invading soldiers who don’t look like them and another generation is put in it’s place.

    But, hey, pot plants.

  3. #3 |  Navarchos | 

    Hyde Amendment is subordinate to the 11th Amendment, which I imagine (without reading more than the article, I’ll admit) is what the court was using to justify the ruling (“sovereign immunity”). Stupid interpretation of it, to be sure, but the way the judges see it, there’s no such thing as “judge-made law.”

    Also let me just preempt anyone who wants to lump all progressive people in with Naomi Klein, who is a holiday nutball serving only to undermine legitimate arguments against corporate abuse.

  4. #4 |  Burgers Allday | 

    Short answer: 42 USC 1983 ,the general statute people use to sue state, county and/or local officials (eg, da’s, popo’s, etc) is just as much statutory as the Hyde Amendment. The most common immunities are based on the Eleventh Amendment and “trump” section 1983 (which has no explicit immunities) on that basis.

    btw, federal officials are sued on a judge-made cause of action (the most common one, but not the only one, is called a “Bivens action”). It is considered to be based on the Constitution, but is subject to immunities highly similar to the Eeleventh amd-based immunities that apply in section 1983 actions.

  5. #5 |  damaged justice | 

    If you signed a petition for secession, the statists think you should be stripped of citizenship. To them, I say: Where do I sign a real petition, not this fake pansy-ass shit? Are you going to get up on your hind legs and throw me out of the country yourselves? I already can’t prove I’m a citizen, as far as the state is concerned I’m an illegal immigrant in my own country — so what are you waiting for?

    “Spoken as if he owned it.”

  6. #6 |  ShelbyC | 

    The 11th amendment has nothing to o with this case, but the com retorts are correct that the immunity and other issues are constitutional in nature and therefore trump the Hyde amendment.

  7. #7 |  ShelbyC | 

    Rats. Autocorrect can such my bells.

  8. #8 |  Burgers Allday | 

    @6: I thought I made that distinction clear in my previous response. You have to know whether the entity being sured is state/local or, alternatively, federal, to know which set of immunities applies. 11th amd is for state/local defendants only.

  9. #9 |  C. S. P. Schofield | 

    Re, the headline of the day;

    OK, those particular State Senators are obviously receiving Radio Venus on their bridgework. Now, will those of the Liberal Left who are snickering please explain how this differs from the decades-long delusion held by so many people that there is a moral difference between being a Communist and being a member of any other cult religion given to mass murder?

  10. #10 |  Cyto | 

    Nice discussion on the prosecutorial immunity question. One obvious issue being left out of the discussion is the structural impediment – judges are uniformly lawyers and primarily former prosecutors. Expecting that they would side with “the people” writ large over “their people” is naive. This is not the way the human brain works. Without any overt corruption their natural human biases will encourage them to rationalize their way to protecting their clan.

    Note that even though the police are state actors in exactly the same way as prosecutors, and police have much less time for deliberation and training to know where their actions might be illegal, the police have a much lower standard of protection than prosecutors under the title “immunity”.

  11. #11 |  C. S. P. Schofield | 

    Why do I think that if a Prosecutor was found to have wrongfully convicted someone through either lawbreaking or gross negligence that Prosecutor would be jailed for no less than the time his victim suffered, Prosecutors would be a little more careful?

    *Ahem*

    Excuse me. I seem to have an excess of bile in my sarcasm ducts.

  12. #12 |  Yizmo Gizmo | 

    •That Stormtrooper in the photo.
    How small a penis would require a man to have to resort to *that* getup for attention?
    Looks like GI Joe meets Darth Vader, with a little Bear Grylls thrown in.
    Hell, maybe even a touch of Felix Baumgartner.

  13. #13 |  Cyto | 

    Mr. Trendy did have an excellent observation:

    As it turns out, it’s hard to work the phrase “I waxed my pubes” into casual conversation.

    so true, so true….

  14. #14 |  BamBam | 

    Radley, typo in your headline

    fire a flash grenade at his disabled mother curing a cocaine raid.

    I think you meant during. But I like curing better, as if the raid and grenades cured the cocaine raid, meaning the stormtroopers cured the problems with their violence. Or like the 1986 Cobra movie with Stallone, “you’re the disease and I’m the cure”.

  15. #15 |  Burgers Allday | 

    Note that even though the police are state actors in exactly the same way as prosecutors, and police have much less time for deliberation and training to know where their actions might be illegal, the police have a much lower standard of protection than prosecutors under the title “immunity”.

    Actually (and I am going to speak roughly here, so no quibblin’), the prosecutors don’t have absolute immunity for things they do in an “investigatory” capacity, but only qualified immunity (or qi), same as the police. There are certainly cases where prosecutors argue that they should get absolute immunity and are denied.

    This does nothing to reduce the problems of absolute immunity where prosecutors misbehave after the charge, or indictment, is in, as we saw in the Connick Senior case, but when the prosecutor is acting as a quasi policemen, then he is held to the same standard as a policeman.

    By the way, I write a blog called:

    police4aqi.wordpress.com

    It is about police cases involving the Fourth Amendment (4a) and qualified immunity (qi). I usually try to keep it pretty light and breezy, and only occasionally get deeply into legal issues. You might enjoy it — check it out!

    “Its gotta be Burgers!” ™

  16. #16 |  Cyto | 

    The point was that when prosecuting you are sitting around in an office with plenty of time to deliberate over your actions. It isn’t like you are standing outside an apartment door wondering whether to kick it in. When you go through a box of evidence and decide not to include the piece of paper that might let the defense team prove innocence, you have plenty of time to think about it. Yet kicking in the door is held to a higher standard than selectively excluding a few pieces of evidence from discovery.

  17. #17 |  Dave Krueger | 

    Last night, Reason’s Nick Gillespie debate former DEA administrator Asa Hutchinson on drug legalization. You can watch here.

    I don’t trust anyone with a perpetual smile on their face. If I were to ever sit across from Asa Huntchinson I would probably not be able to resist the temptation to smack that look right into tomorrow.

  18. #18 |  Burgers Allday | 

    @16: yes, that is ironic. The irony is most heightened in cases where the prosecutor loses absolute immunity (and gets downgraded to qi) because she got suckered into helping police with an “urgent” situation.

    I think that one of the reasons justifying absolute immunity in theory is that absolute immunity applies to stuff that gets done to a person generally after she has a lawyer representing her. Of course, this rationale falls apart when they hide stuff from the defendant’s lawyer. In situations other than the prosecuting atty hiding exculpatory stuff, absolute immunity does make some fair amount of sense. And, my own opinion is that when the prosecutor hides evidence then she has slipped back into an investigatory role (albeit an anti-investigatory role) and should be downgraded to qi on that basis. This is definitely not what the law says at this point in time, but it makes too much sense for the law not to go that way eventually.

    “Burgers say whaaaat?!?”(tm)

  19. #19 |  Cyto | 

    Just watched the debate. Nick was particularly effective. I was mostly struck by Asa’s strict authoritarianism. He truly seems to believe in rules for the sake of rules.

    His partner did let the cat out of the bag though – in arguing that the drug war doesn’t cause crime in Mexico or Columbia he basically said, “those Mexican/Columbian people are all criminals to begin with, and they’ll be criminals with legalization”. Strangely, nobody called him on his jarringly racist assertions. On the other hand, he did seem to be the most effective person in arguing that drugs don’t cause crime (with the implication that they should therefore be legal left unsaid).

  20. #20 |  Steve Verdon | 

    @#18

    I think that one of the reasons justifying absolute immunity in theory is that absolute immunity applies to stuff that gets done to a person generally after she has a lawyer representing her.

    I don’t see how having a lawyer would help the defendant if the prosecutor decides to break the law to “win”. This justification makes no sense in practice or theory.

  21. #21 |  Matt | 

    Re. the St. Paul cops:
    “St. Paul police kicked a man in the face as he lay on the ground…”

    And:
    “Police then shot a “flash-bang” grenade directly at the woman, setting her afire…”

    Both those acts are attempted murder and would result in ferocious prosecution if committed by a mere mundane.

    That’s a really juicy double standard.

    What country is this again?

  22. #22 |  Johnny Sack | 

    Been a while since I took crim pro, but I wonder. Since he’s been charged, could be a sixth amendment claim (right to counsel). Although he was talking to his lawyer. Maybe 42 USC 1983 action? Depending on how they listened in. wiretapping laws may apply. Prosecutors are not empowered to personally intercept communications like that. No idea. Bare minimum they should be fired. I don’t know what Florida ethics rules are, but I think they should have their licenses suspended at minimum.

  23. #23 |  Johnny Sack | 

    Also, prosecutors would have qualified immunity for the purposes of a 1983 action. I’m pretty sure they don’t have absolute immunity, but criminal law is not my area.

  24. #24 |  Johnny Sack | 

    Well sovereign immunity in practice means that you need the government’s explicit permission to sue it. 1983 does that, in part.

    Also, I’m too lazy to read the actual opinion-what was the separation of powers argument? Sounds facile in this context. It seems the point of 1983 that too much executive branch discretion with no recourse is problematic. What was his argument in civil suit? Violation of due process or something? How the fuck do you contort separation of powers to dismiss that?

  25. #25 |  Whim | 

    Why do judges permit the police/FBI to remain ANONYMOUS as to the individual officer identity during drug raids? There is no visible nametape on these police uniforms in Santa Rosa.

    And, deployment of flashbang grenades in any situation except for an armed, barricaded felon should be considered assault with intent to commit murder. The grenades are grievously dangerous to those on the receiving end.

    And, has anyone ever looked at the long-term toxicity of the poisons released into a HOME by the discharge of such a grenade?

  26. #26 |  Rob | 

    And, has anyone ever looked at the long-term toxicity of the poisons released into a HOME by the discharge of such a grenade?

    According to Wikipedia, flashbang grenades typically use a charge of magnesium or aluminum shavings along with either ammonium perchlorate or potassium perchlorate as an oxidizer. None of those things are particularly toxic, especially in the amount that would be left over after the grenade goes off. It’s also a fairly common pyrotechnic mixture, so it’s properties are fairly well known.

    That aside, the rest of your post is spot on.

  27. #27 |  Burgers Allday | 

    I don’t see how having a lawyer would help the defendant if the prosecutor decides to break the law to “win”. This justification makes no sense in practice or theory.

    The prosecutor’s absolute immunity is limited to stuff she does in her lawyer role.

    Lawyer role: If she tries breaks the law by getting the neccessary permission, in discovery, to search the defendant’s shed based on less than legally sufficient grounds then the defendant’s lawyer will catch that (before the prosecutor gets the permission).

    Lawyer role: If she breaks the law by flagrantly mis-citing or mis-quoting a precedential case in a legal brief to the judge then the defendant’s lawyer will catch that.

    Not lawyer role: If she goes to the jailhouse and beats on the defendant with a bag of oranges until the defendant confesses on video in order to make the (off-camera) beating stop, then she is not acting in her lawyer role. No absolute immununity.

    Not lawyer role: If she goes and searches the defendant’s shed without court permission then she is not acting in her lawyer role. No absolute immunity.

    Not lawyer role: If she goes to search defendant’s shed without getting the necessary permission from the court first (meaning that she trespassed).

    The thing is: stuff that lawyers do, in their role as lawyers, is generally watched by the opposing lawyer, in approximately real time. If something bad happens then it is up to the opposing lawyer to timely object, or be the one responsible when an illegal thing happens. I am not going to say that this legal distinction is perfect, but it does make some baseline sense. If the rule was that anything a prosecutor did was absolutely immune then that would indeed not make sense — but, and thi is my main point here on this thd — that is not the rule.

  28. #28 |  marco73 | 

    St. Paul Minn raid.
    3 grams of pot. Isn’t that slightly smaller than a single serving sugar packet?
    Dudes, for $400K, I can fix them up with a whole lot more pot than 3 grams.

    But the drug war really isn’t about getting drugs off the street, it’s about enlarging the dicks of every drug warrior. Everything else is just part of the show.

  29. #29 |  (B)oscoH, Yogurt Eater | 

    Remember when Naomi Klein was both shriekingly annoying and kinda hot? I.e. borderline tolerable….

  30. #30 |  SJE | 

    Judge-made law is not subservient to statutory law if the judges are interpreting the constitution. The constitution was written in a time when most law was “judge made” and judges can decide to interpret the constitution in view of the judge made law at that time.

    Recent example: SCOTUS overturned Congress’es mandatory minimum sentences as denying full judicial independent as conceived in the Const

  31. #31 |  supercat | 

    // The constitution was written in a time when most law was “judge made” and judges can decide to interpret the constitution in view of the judge made law at that time.//

    Although that is true, part of the purpose of having a concrete written Constitution in the first place was to remove the reliance upon highly-fungible “case law”. Further, a judge’s job is to uphold laws defined by others. If a situation arises which the authors of a law didn’t consider, a judge may have to guess what at the author’s intent; the judge’s guess should be considered binding case law *only as long as the intent of the authors (or their successors) remains unclear. If the authors (or successors) don’t like the judge’s interpretation, it would be entirely proper for them to write new rules which make their intent clear.

  32. #32 |  supercat | 

    #18 | Burgers Allday | //I think that one of the reasons justifying absolute immunity in theory is that absolute immunity applies to stuff that gets done to a person generally after she has a lawyer representing her.//

    A bigger issue, I think, is that there is a very strong presumption that officers of the state will act in good faith, and when they act wrongly it is because of poor judgment rather than improper motive. This view probably stemmed from the fact that in the absence of immunity, officers of the state had sufficient incentives to refrain from bad-faith actions that actions brought against officers who were acting in good faith would have outnumbered those brought against those acting in bad faith. Unfortunately, laws which declare that state officers shall be presumed to act in good faith have the perverse effect of making it less likely that the officers will actually do so.

    There are sound reasons for giving officers of the state immunity against frivolous actions when they are acting in good faith (a prosecutor who was constantly having to defend against such actions brought by everyone he’d convicted would have little time to do anything else). What is difficult is providing a means by which officers of the state could be given immunity against legal action except in cases where someone can demonstrate a basis for believing that they were not acting in good faith, without the officers having to spend any time or money defending against such claims before they are established, nor suffering any legal harm or prejudice from failure to do so.

  33. #33 |  Deucemaster | 

    Fuck 42 USC 1983. I want 18 USC 242 charges.

  34. #34 |  JimBob | 

    This is completely off-topic, but if anybody wants a good laugh, Blogger Bob at the TSA has published his 2012 holiday travel tips. Among the more amusing snippets about what is allowed and not allowed to be taken past TSA checkpoints:

    * “Gel Inserts [sic] for shoes are now permitted”
    * “Cakes, pies, bread, donuts, turkeys, etc. are all permitted.”

    So it’s perfectly acceptable to bring a whole turkey in your carry-on. However, the post goes on to remind us that gravy, cranberry sauce, potato salad, and spinach dip are all still verboten (along with peanut butter, cheese spreads, and other foods), and must be left in checked baggage or surrendered to the TSA at the checkpoint.

    Read the whole thing at http://blog.tsa.gov/2012/11/tsa-2012-holiday-travel-tips-news.html

  35. #35 |  Personanongrata | 

    St. Paul police kicked a man in the face as he lay on the ground and tried to explain that his mother couldn’t quickly get to the ground because she’d recently had surgery, a lawsuit says. Police then shot a “flash-bang” grenade directly at the woman, setting her afire and seriously burning her legs, according to the lawsuit.

    This reads like the key-stone cappers of SWAT terrorists rather than the actions law enforcement professionals.

    I wonder what tactics the Soviet NKVD or East German Stasi used?

  36. #36 |  egd | 

    “Top Georgia GOP Lawmakers Host Briefing on Secret Obama Mind-Control Plot”

    Attending conspiracy-theory conferences torpedos your chances at higher office? Damn.

    I really enjoyed the “we didn’t land on the moon” and “Ronald Reagan is a reptilian” conferences I attended.

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